Lawmaker, GLBT Advocacy Group to Congressional Republicans: Don't Defend DOMA

Last week, the Obama Administration announced that it would not defend DOMA in federal court. Now, lawmakers and GLBT equality advocacy groups have a message for GOP members of Congress who have sworn to make an issue of siding with the anti-gay 1996 law in court: Focus on the economy.

Under the provisions of the act, signed into law by then-president Bill Clinton, gay and lesbian families may not be recognized legally by the federal government. That means that even those same-sex couples that are married in the five states where family parity is legal can only access state-level benefits and protections related to matrimony. The law also allows states to ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

Attorney General Eric H. Holder. Jr., made a statement on Feb. 23 on the decision not to defend the law on the basis that Section 3 violates the United States Constitution--specifically, guarantees specified in the Fifth Amendment. The law has already been found unconstitutional by federal court judge Joseph L. Tauro.

GLBT equality advocates see DOMA as a bulwark against full legal and social equality for gays and their families, because the law reaches into so many areas of family life. Under DOMA, immigration reforms that would give gays the same rights to sponsor a life partner from another country could be blocked. Moreover, because DOMA is a federal law the denies recognition to same-sex married couples, even those states where family parity is legal can only offer couples state-level protections: Social Security benefits for same-sex spouses, federal pensions, and tax protections are beyond the reach of non-heterosexual partners under current law.

DOMA also imposes a situation that has allowed a patchwork, and highly variable, legal situation to prevail. Married couples that leave any of the five states where marriage equality is legal find themselves subjected to an array of laws that render them unmarried--and, in states where anti-gay laws are extreme, gay spouses may find that they are legal strangers.

Anti-gay social conservatives say that gay and lesbian families should be denied legal recognition in order to "preserve" heterosexual unions, which, they argue, would somehow be harmed if marriage equality were granted to same-sex couples. Moreover, social conservatives warn that religious individuals would find their rights of free expression and worship abrogated if gay weddings became commonplace.

House Speaker Boehner, in an appearance on cable television provider the Christian Broadcasting Network (CBN), sought to reassure those who object to marriage parity for gay and lesbian families because of their religious tenets. "I'd be very surprised if the House didn't decide that they were going to defend the law," Boehner told the media.

Boehner echoed a proposal by former Sen. Rick Santorum that the House of Representatives could defend the anti-gay law in court in place of the Justice Department. Santorum himself is an anti-gay politician known for comparing the GLBT community to people who practice bestiality.

The House might also propose new anti-gay laws to bolster DOMA, media reports said.

"If the president won't lead, if the president won't defend DOMA, then you'll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly," Boehner declared.

When DOMA was signed 15 years ago, it was the result of a much different political climate. The bill was a response to a court decision in the state of Hawaii that seemed to be opening the door to marriage equality for gay and lesbian families. Since then, 30 states--including Hawaii--have amended their constitutions in order to shut same-sex couples out of marriage parity, but seven states have approved marriage equality. In two of those states--Maine and California--voters yanked marriage rights away from gay families by approving anti-gay ballot initiatives.

But a bare majority of Americans now say that gay and lesbian families ought to be granted relationship rights--a significant shift from the public attitude toward gays and their families in the mid-1990s. Moreover, the Tea Party-led electoral victories that Republicans saw take place in November were driven more by financial stress than by voter concern over social issues.

Indeed, Tea Party leaders last summer indicated that they did not wish to see DOMA continue.

Tea Party philosophy embraces limited government, including an emphasis on states' rights, over social policies that punish GLBT individuals and their families. Conservative bloggers have said that it shouldn't be a surprise at all that some among the movement support last year's ruling by federal court judge Joseph L. Tauro striking DOMA down.

"Although the likes of Keith Olbermann and Janeane Garofalo smugly attempt to marginalize the Tea Party movement by falsely stating that it is populated by anachronistic racists, homophobes and rednecks, the fact is that many actually are supportive of the recent U.S. District Court decision out of Massachusetts which struck down the federal ban on gay marriage," a July 13, 2010 posting at Before It's News.com said.

The article referenced a July 13, 2010, article at the Washington Post that noted the contrast between the Tea Party and other conservative groups, the latter of which lost no time in decrying Tauro's ruling.

States' Rights Over Federal Control

"I do think it's a state's right," said Phillip Dennis, the state coordinator of a Texas Tea Party group. "I believe that if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion." Dennis noted that this was his personal opinion and not a Tea Party platform, but generally speaking, the Tea Party sticks to fiscal issues and leaves social questions out of their message.

"On the issue itself, we have no stance," said Florida Tea Party Patriots state director Everett Wilkinson on the matter of marriage equality, adding, "but any time a state's rights or powers are encouraged over the federal government, it is a good thing." According to Wilkinson, hundreds of the Florida party's membership are gay themselves.

Whereas other conservative groups may be influenced by anti-gay religious sentiment, the Tea Party tends more toward libertarian principles, noted the Washington Post.

However, opinion within the Tea Party movement is nuanced, and falls across a spectrum of acceptance for the rights of GLBT individuals and their families. Some Tea Partiers fear that the ruling could lead to broader legal recognition of gay and lesbian families, reported the New York Times in a July 9, 2010, article.

"As far as an assertion of states' rights goes, I believe it's a good thing," Shelby Blakely told the Times. Blakely heads up the Tea Party publication The New Patriot Journal, an online periodical. "The Constitution does not allow federal regulation of gay marriage just as it doesn't allow for federal regulation of health care," added Blakely, before going on to say, "But I don't want to come off saying I support gay marriage."

Despite the message that a Tea Party-inspired electorate sent to Democrats last November--a message that may well be delivered to Republicans in 2012--GOP lawmakers may be willing to overlook the mandate from voters to focus on economic issues if putting social issues--and gay and lesbian families--front and center means a chance to oust Obama from the White House.

It's a strategy that might well backfire, if Congressional Republicans even choose to pursue it. Already, Democrats and GLBT advocacy groups are reminding the GOP--and voters--of the promises made by Republican candidates prior to the November elections, promises that were reiterated as the new, more Republican Congress assumed office earlier this year.

The Human Rights Campaign highlighted the words of Boehner and of House Majority Leader Eric Cantor in a March 2 press release.

"Our new majority is intent on honoring the commitment we made to the American people," Boehner said on Feb. 10 in a speech he made at the Conservative Political Action Conference. "We pledged we would focus on jobs and spending, and stopping the Washington regulatory assault that has led to massive uncertainty in the private sector. We're going to keep our word."

"We will reform the way the House operates," Cantor assured the electorate on Nov. 15, 2010, shortly after the midterm elections. "This starts by rethinking how time is spent and what types of legislation we will bring to the House floor.

"We will identify our top policy goals and commit to take concrete steps every single week to advance those goals," Cantor continued. "And we will hold each other accountable by asking: Are my efforts addressing job creation and the economy; are they reducing spending; and are they shrinking the size of the federal government while increasing and protecting liberty? If not, why am I doing it? Why are we doing it?"

"Republican leaders in the House of Representatives plan to announce, as soon as this Friday, March 4, their response to the recent announcement by the Obama Administration that they will no longer defend Section 3 of the discriminatory Defense of Marriage Act (DOMA)," the HRC release said. "The Administration's announcement also contained a clear statement that it will continue to enforce the law but will no longer defend the one section of the statute in court that denies federal recognition and benefits to legally married same-sex couples," added the release.

Sen. Kirsten Gillibrand wrote to Boehner on March 2 to argue that pursuing the matter by appointing special counsel to defend DOMA in federal court would be costly in terms of taxpayer dollars and a distraction from the business of running the government, keeping campaign promises to focus on economic issues, and addressing pressing economic concerns such as the federal budget--an matter of some urgency since a possible shutdown of the government is looming in the event that Congress and the president cannot reach an agreement on fiscal issues.

"It is in the best interests of taxpayers and the constitution for you to refrain from appointing special counsel to defend this law," Gillibrand's letter to Boehner read. "A decision to appoint special counsel would be an unnecessary cost to taxpayers, and would detract from our shared goal of cutting wasteful spending and creating jobs.

"The executive branch's responsibility to defend federal laws is not absolute, particularly in instances such as the present case, where the federal law is in direct conflict with the confines of the Constitution," the letter continued. "At this critical economic juncture in our nation's history, it is imperative that we as legislators do not devote resources to defending an antiquated and unconstitutional law.

"Instead, we must focus our attention on creating jobs and increasing America's competitiveness in an increasingly competitive global market. The appointment of special counsel and pursuit of this case is a drain on resources, time, and energy and is not in America's economic and social interests."

Obama's Actions Not So New

Right-wing commentators such as Rush Limbaugh have slammed Obama for the decision not to defend DOMA on constitutional grounds. Limbaugh imagined a scenario in which Sarah Palin were president and making similar declarations about the constitutionality of health care reform and the Environmental Protection Agency.

But Gillibrand's letter cited precedent for the president's declaration that Section 3 of DOMA was unconstitutional, and his determination that the Justice Department should not defend the law in federal court.

"As you are aware, Article IV of the United States Constitution requires the President to enforce federal law, including the Constitution," Gillibrand's letter noted. "This authority requires that every law is to be carried out so far as it is consistent with the Constitution, and no further.

"There is ample, well documented evidence of the long history of the executive branch's refusal to defend laws that it finds to be unconstitutional," Gillibrand's letter added. "This record includes instances such as Thomas Jefferson's refusal to enforce the Sedition Act and more recently, when then-Deputy Solicitor General John Roberts refused to defend federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. Federal Communications Commission.

"Roberts, appearing on behalf of the United States as amicus curiae, and the Department of Justice not only did not defend the federal statutes, but also urged the Court to declare these statutes unconstitutional. They argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. Roberts further urged the court to reject the deference to Congress and to apply strict scrutiny to federal affirmative action programs.

"At that time, Congress did not appoint special counsel to defend this law in the White House's stead, but instead deferred to the President's constitutional authority," the letter recollected. "Congress should do the same in this case."

"Regardless of how Members feel about the merits of DOMA, there is no need for the full House to vote in order to defend the law," the HRC release of March 2 noted. " The Speaker doesn't need a House vote to intervene--any move in this direction would be a transparent effort to elevate the issue and throw red meat to his right-wing base. It would be particularly hypocritical given the Speaker's contention that the President shouldn't have made the decision he did in order to focus on the economy.

"The second important issue for House Republican leadership is what does it mean to defend the constitutionality of Section 3 of DOMA in Court?" the HRC release continued. "Among the arguments Congress would likely have to make: