Speaker of the House John Boehner’s announcement that former Solicitor General Paul Clement will lead the defense of the Defense of Marriage Act (DOMA) in federal court is a victory for the rule of law—and for an irreplaceable institution of civil society.
Ever since February 23, when Attorney General Eric Holder announced that he and President Obama had concluded that DOMA was unconstitutional, litigation over the 1996 law has been held in abeyance awaiting yesterday’s decision by the Speaker. The naming of Clement ends all doubt as to whether marriage as the union of a man and woman will get the vigorous defense it deserves in federal appeals court and, if necessary, the U.S. Supreme Court.
Advocates of redefining the institution of marriage have long sought to create an impression of irresistible momentum in their direction. That sense of momentum has traditionally relied on strategies involve judicial activism and incremental approaches like civil union legislation. Since the beginning of the legislative sessions in 2011—indeed, since 2009—no state has adopted same-sex marriage. Forty-five states, in contrast, have retained their protections for traditional marriage (31 of them actually strengthening their laws via voter-approved constitutional amendments).
Maryland, which same-sex marriage advocates regarded as their most likely target of opportunity this year, rejected a change in its law in March when its implications for religious liberty were highlighted in the House of Delegates. Illinois and Delaware have recently passed civil union legislation that provides for most of the legal and financial benefits of marriage without applying the status of marriage to these relationships.
Meanwhile, the Indiana Senate voted 40–10 on March 31—joining the Indiana House, which had voted 70–26 earlier this year—to put a marriage-protective constitutional amendment on the state ballot. After the next election, the Indiana legislature must approve the amendment a second time before the issue can go to the voters.
In February, the Iowa House of Representatives voted 62–37 to put a marriage amendment on the ballot there as well. The Senate Majority Leader, Mike Gronstal, is blocking the amendment from coming to a vote in the upper chamber. In Minnesota in March, a state trial judge dismissed a challenge to the state’s man–woman marriage policy, citing the 1972 U.S. Supreme Court decision in Baker v. Nelson, where the high court dismissed the suit of two men who had sought a marriage license in the Gopher State.
Trying to avert an additional cost to the taxpayers for litigation that the Justice Department had previously conducted (however poorly), House Speaker John Boehner (R–OH) also sent a letter to Minority Leader Nancy Pelosi (D–CA) yesterday urging her cooperation in funding the House of Representatives’ legal support for DOMA. That cooperation seems unlikely. Pelosi, in a rare miserly mood, has previously expressed her budgetary concerns about DOMA’s defense.
Acting quickly, Clement filed his first motion in federal court yesterday, an unopposed request to represent the House of Representatives as an intervenor in the case. The court filing notes that the history of House participation in litigation on constitutional issues has generally involved merely filing amicus curiae briefs. Given the Obama Administration’s refusal to defend the constitutionality of DOMA’s Section 3—which reserves words such as spouse in federal law for relationships between a man and a woman—Clement’s motion seeks full intervenor status for the House to act as a party in the stead of the Justice Department. At the same time, the motion makes clear that the Justice Department retains the responsibility to defend other challenges to DOMA, including its provision protecting the states from being forced to recognize each other’s determinations regarding recognizing same-sex marriage.
Boehner and his colleagues on the Bipartisan Legal Advisory Group, Eric Cantor (R–VA) and Kevin McCarthy (R–CA), have taken the responsible approach and launched a strong defense of a wise and necessary law that the previous Congress, firmly under the control of then-Speaker Pelosi and Senate Majority Leader Harry Reid (D–NV), made no move to disturb.