When the Justice Department announced in late February that it would no longer defend the 1996 Defense of Marriage Act, a law prohibiting federal or interstate recognition of same-sex marriage, it put itself on the right side of the struggle for equal rights for lesbian, gay, bisexual, and transgender Americans.
The Defense of Marriage Act denies federal benefits to same-sex couples who simply want the same rights as their heterosexual peers, and it tramples on the constitutionally guaranteed right to the equal protection of laws. What’s more, the law violates the “full faith and credit” clause of the Constitution by allowing states to disregard what is considered a legal marriage contract in other states. The founding fathers envisioned a federal system in which contracts would be uniformly applied throughout the country, not wantonly subjected to the prejudice of certain state legislators.
After the Justice Department’s announcement, the Republican majority in the House of Representatives, not content to let the President’s principled decision stand, elected to single-handedly take up the law’s defense. The Republican-controlled House hired Paul Clement, President George W. Bush’s former solicitor general, and high-powered Atlanta law firm King & Spaulding, to defend the law at an hourly rate that would have saddled taxpayers with up to $500,000 in legal fees.
King & Spaulding dropped the case on Monday after an organized campaign directed criticism at the firm and put pressure on its major clients. Clement resigned from the firm and will take up the House’s case at another law firm, Bancroft PLLC, which was founded by Viet Dinh, a professor at Georgetown Law School and another former Bush administration official.
In refusing to let the Defense of Marriage Act die, Republicans are prioritizing an issue which has nothing to do with the promises they made to win the House in 2010: to create jobs, to tackle the rapidly increasing government debt, and to speed a tepid economic recovery. Again and again, Rep. John Boehner’s (R – Ohio) House has allowed social causes that energize the Republican voting base to trump more pressing issues.
House Republicans should give up their wasteful bid to preserve the Defense of Marriage Act. It is irresponsible to devote so much time and money to the defense of an immoral and unconstitutional law. It’s time for Republicans to recognize that there are greater goals to pursue than the continuation of backward and outdated prejudice.
I think the editorial here misses the mark.
1) “In refusing to let the Defense of Marriage Act die, Republicans are prioritizing an issue which has nothing to do with the promises they made to win the House in 2010: to create jobs, to tackle the rapidly increasing government debt, and to speed a tepid economic recovery.” This statement represents an entirely false dichotomy. Congress has proven that it has the capability to promote healthcare, foreign policy goals, and economic recovery, among others. So, it should be able to add “hiring an outside counsel to defend DOMA” to this list. Legislative goals aren’t like Harry Potter books: you don’t need to finish one before you can start the next one, and you can work on many at a time. Furthermore, $500,000 is nothing when it comes to the national debt. Entitlement programs and defense overspending will leave the taxpayers in far worse shape than Clement’s retainer.
2) The Justice Department (and the Executive branch, by extension), acted in a peculiar manner by choosing not to defend DOMA, ruling on its own that the law was unconstitutional. This action, while not unprecedented, is very rare. Though one might call the administration’s decision “principled”, there is a compelling argument that the principled decision ought to have come from the courts (especially when there is still not consensus about the many issues that dropping DOMA possesses).
3) There is a statutory remedy for when the DOJ decides it no longer wants to enforce or defend a law and Boehner is acting on it. If a future Republican president were to order his or her DOJ to no longer defend the healthcare law, the provisions in place will enable the House or Senate to still defend it. I don’t agree with DOMA as a law, but I’d rather see it have its day in court and be declared unconstitutional by the legal system, like many laws are. A decision like the one that the DOJ made endangers our system of separation of powers.