House Republican Leaders Vote to Authorize DOMA Defense

On March 9th,  the Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, condemned the House Republican leadership for formally voting to authorize intervention to defend the clearly discriminatory and unconstitutional Defense of Marriage Act (DOMA) in court.  The Bipartisan Legal Advisory Group, convened by Speaker Boehner, voted 3-2 to authorize the House to retain legal counsel.  Minority Leader Nancy Pelosi (D-CA) and House Minority Whip Steny Hoyer (D-MD) voted against the action.  With at least nine cases challenging the constitutionality of DOMA, spanning three appellate courts and four district courts in six states, today’s vote sets up an expansive and expensive undertaking.

“Apparently, the Republicans’ jobs plan is a full employment project for right-wing lawyers bent on defending discrimination,” said HRC President Joe Solmonese.  “With today’s vote, Speaker Boehner has made clear that an anti-equality agenda trumps helping American families in tough economic times, including loving and committed couples who are legally married in their states.”

Today’s vote leaves a number of important questions unanswered, including:

  1. There are at least nine federal lawsuits — spanning three appellate courts and four district courts in six states — challenging the constitutionality of Section 3 of DOMA.  Will House Republicans intervene in all of these lawsuits?
  2. Who will represent House Republicans in court? Will the House hire outside private counsel to defend the cases? If pro-bono legal counsel will be asked to represent the House, who will that be? Will a conflict and ethics check be conducted? Will the BLAG be consulted on strategic decisions related to the litigation?
  3. How much taxpayer money will this all cost?
  4. What will the House argue in defending DOMA?  Will they go back to Congress’s 1996 arguments for passing the law – that it is necessary because marriage equality is “a radical, untested and inherently flawed social experiment” and contrary to the “moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”?
  5. The Justice Department stopped defending DOMA because they concluded that laws that discriminate based on sexual orientation should receive a higher level of scrutiny by courts.  Will the House Republican leaders disagree?  If so, will they argue that gays and lesbians have not suffered a long history of discrimination?  That sexual orientation is somehow relevant to an individual’s ability to contribute to society, when they have four openly-gay colleagues?  That gays and lesbians can change their sexual orientation, a position at odds with every major psychological organization?  That gays and lesbians are politically powerful, ironically in defending a law passed by Congress specifically to disadvantage them?
  6. Do they think they’ll win, especially given that in two DOMA-related cases in Massachusetts, a federal judge appointed by President Nixon has already found Section 3 of DOMA to be unconstitutional even under the lowest level of scrutiny that gives great deference to the legislature?
  7. Apart from these cases, will Republican House leadership do anything to address the inequalities that lesbian, gay, bisexual and transgender people face?

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