House Speaker John Boehner and his counsel confirmed on Wednesday that they will uphold the so-called “Defense of Marriage Act” in court as a third party defendant in place of the Obama administration.
An advisory board voted 3-2 along party lines to intervene in court cases that challenge the constitutionality of the 1996 law, which limits the federal definition of marriage to the union of a man and woman and gives states the option of not recognizing marriages for gay and lesbian couples performed in other jurisdictions. Although the House has the authority to defend the statute on its own, sources say general counsel Kerry Kirchner plans to hire outside legal advisors to handle the case because his staff is too small to address such major litigation. The San Francisco Gate reports that this could cost millions of dollars, which is especially problematic as the government attempts to cut costs for hundreds of domestic programs. Kirchner affirmed that the cost would “not be inexpensive,” as there are currently at least ten cases pending against DOMA and intervention will take at least 18 months.
House Democratic leader Nancy Pelosi is critical of Boehner’s efforts to defend the law, saying it will be lengthy and expensive. “The House should not be in the business of defending an unconstitutional statute that is neither rational nor serves any governmental interest … Pursuing this legal challenge distracts from our core challenges,” she said, calling the law itself discriminatory. Joe Solmonese, president of the Human Rights Campaign, agreed. “With today’s vote, Speaker Boehner has made clear than an anti-equality agenda trumps helping American families in tough economic times,” he commented. The Human Rights Campaign has already partnered with other organizations such as GetEqual in speaking out against Boehner’s decision.
The Obama administration announced last month that it would no longer defend section 3 of DOMA because it does not withstand constitutional scrutiny. Boehner has responded by arguing that this determination should be made by the courts rather than the President. However, the National Law Journal as well as other political journals point out that many Presidents have chosen not to defend unconstitutional laws on multiple occasions, and various interpretations of the Constitution uphold this as one of the President's legal obligations.
Current marriage bills are pending in state legislatures in Maryland and Rhode Island, and five states and the District of Columbia have already legalized marriage for gay and lesbian couples. Still, DOMA bars even these couples from receiving any federal benefits that are given to heterosexual married couples, such as immigration rights, medical rights and estate benefits—over 1000 rights in all.
Although the marriage equality debate is one of the most fervent issues in the media right now, there is a lot of confusion about the actual implications of Obama’s decision not to uphold DOMA. GLAAD encourages LGBT advocates as well as the mainstream media to educate themselves about what DOMA means in order to have meaningful conversations with family and friends. We’ve created a resource page with answers to frequently asked questions and clarifications to common myths and misconceptions.
Please share this information in your conversations with others, and in the meantime, GLAAD will continue to monitor media coverage on marriage equality so that the stories of LGBT couples across America continue to be told in a fair and accurate way.
GLAAD’s National News Intern Danny Heffernan also contributed to this report.