New Jersey LGBT Law

WASHINGTON—House Speaker John Boehner, R.–Ohio, said on Friday that he is launching a legal defense of the federal law that limits the definition of marriage to the union between one man and one woman.

President Barack Obama last month announced that he had determined, after consultation with Attorney General Eric Holder, that Section 3 of the Defense of Marriage Act (DOMA) would not pass constitutional muster under a heightened review standard. As a result, Mr. Holder said he would inform district courts in the Second Circuit as well as the U.S. Court of Appeals for the First Circuit, where cases are pending, that the department would no longer defend the law although the administration would continue to enforce its provisions denying federal benefits to same-sex partners, even where such unions are legally recognized (NYLJ, Feb. 24).

It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy, Mr. Boehner said in a statement. The constitutionality of this law should be determined by the courts—not by the president unilaterally—and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.

There are two challenges pending in district courts in the Second Circuit–Windsor v. United States, 10-cv-8445, in the Southern District and Pedersen v. OPM, 10-cv-1750 in Connecticut. The government has two appeals pending before the First Circuit, where Massachusetts District Judge Joseph Tauro ruled DOMA unconstitutional in the face of challenges by same-sex couples and the commonwealth of Massachusetts.

Mr. Boehner said he intends to convene the Bipartisan Legal Advisory Group, which has the authority under House Rules to instruct the Office of House General Counsel to take legal action on behalf of that chamber. The five-member panel consists of the speaker, majority leader, majority whip, minority leader and minority whip.

Mr. Boehner said he was convening the panel for the purpose of initiating action by the House to defend this law. But there was no immediate indication of specifically what action it would direct or when the group would meet.

The two Democrats on the panel were unlikely to support any defense of the law. Minority Leader Nancy Pelosi, D-Calif., has lauded Mr. Obama's decision to stop defending it as a victory for civil rights, fairness and equality.

On Friday, she criticized Mr. Boehner's move as a costly burden on House staff.

This is nothing more than a distraction from our most pressing challenges, such as creating jobs and reducing the federal deficit, she said.

The White House declined to comment on Mr. Boehner's announcement.

The National Organization for Marriage issued a statement praising Mr. Boehner's announcement.

With the House intervening, we will finally get lawyers in that courtroom who are trying to win this case—and we are confident that in the end DOMA will be upheld by the Supreme Court, said Brian Brown, the group's president.

Mr. Holder told a House committee last week that Justice Department officials take seriously their historical practice of defending statutes in court if a reasonable defense of them can be made, and he walked through the process that he and Mr. Obama used in the case of the Defense of Marriage Act. While he did not rule out letting other statutes fall by the wayside, he said the department would do so rarely.

We again will look at these on a case-by-case basis, based on our historical obligation, that we have followed, to defend the statutes that Congress has passed, Mr. Holder said.

The National Law Journal reported in October that 13 times in the past six years the Justice Department has told Congress it would not defend a law. Many of those decisions came in cases in which the solicitor general determined the government was bound to lose in court.

The Government Accountability Office estimates that there are more than 1,000 provisions of federal law in which benefits, rights and privileges are contingent on marital status or in which marital status is a factor.