HRC Blog

Seven Questions For Speaker Boehner on DOMA Defense

Speaker John Boehner and House Republicans leaders are expected to take action as early as tomorrow to defend Section 3 of the discriminatory Defense of Marriage Act (DOMA) in federal court. With a Friday filing deadline looming in two lawsuits, unanswered questions continue to dog Republican leaders.

First, some context… the Republican effort is clearly at odds with the priorities of the American public. According to aFebruary FOX News survey, “reducing unemployment” and “reducing the budget deficit” are the top priorities of Americans; social issues were not even listed. House Republican leaders also seem to be on the wrong side of history. Last week, the Pew Research Center released a nonpartisan poll indicating 45 percent of people (and 51 percent of independents) supported allowing gay and lesbian couples to marry. Just two years earlier, the same poll found that 35 percent (and 37 percent of independents) supported marriage equality, a 10 point jump in just 24 months.

A number of important questions remain unanswered by House Republican Leaders:

1.         There are as many as nine lawsuits in federal court 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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