- The Washington Times - Monday, April 18, 2011

The Republican leadership in the House stepped up its efforts Monday to defend the federal government’s marriage law, which is already under attack or implicated in as many as 10 lawsuits.

Paul D. Clement, who was solicitor general in the George W. Bush administration, has been retained by the House Bipartisan Legal Advisory Group to oversee the strategy regarding the Defense of Marriage Act (DOMA), House leadership aides said.

Moreover, since the Justice Department declared in February that it will not defend DOMA in court, the funding it would have used for DOMA defenses should now be “diverted” to the House to cover its legal expenses, House Speaker John A. Boehner, Ohio Republican, said Monday in a letter to House Minority Leader Nancy Pelosi, California Democrat.

Mrs. Pelosi — who opposes any defense of DOMA — replied to Mr. Boehner that she still wants to know what the litigation will cost. She also asked “to know when the contract with Mr. Clement was signed, and why a copy was not provided” to Democratic leaders.

In March, Mrs. Pelosi warned Mr. Boehner that there were “at least 10” DOMA cases to litigate, and the cost to defend DOMA, especially using private attorneys, would be “substantial.”

The House legal advisory group is made of the top five House officials, three from the majority party and two from the minority. In their March 4 vote on DOMA, the three top Republicans voted to defend the law, while the two top Democrats voted against it.

A spokesman for Mr. Clement declined to discuss DOMA activities.

However, lawyers representing the House were expected to meet a Monday deadline to file briefs at a federal court in New York in Windsor v. United States, one of the lawsuits challenging DOMA.

The Windsor case played a major role last week during a House hearing on reasons to defend DOMA.

“The reason we are here is that the Obama administration recently announced it would no longer defend marriage,” Rep. Trent Franks, Arizona Republican and chairman of the House Judiciary subcommittee on the Constitution, said at the opening of the hearing called “Defending Marriage.”

On Feb. 23, Mr. Franks explained, Attorney General Eric H. Holder Jr. said President Obama had concluded that DOMA’s definition of marriage as “only a legal union between one man and one woman as husband and wife” was unconstitutional.

The House of Representatives will now defend its 1996 law in court, and “this hearing is an important step in that defense,” Mr. Franks said.

Rep. Jerrold Nadler, New York Democrat and ranking minority member, however, wondered why there was still support for the “abhorrent and immoral” DOMA, in light of evolving legal and social views on gay marriage.

The Justice Department “correctly found it unconstitutional,” said Mr. Nadler. After all, the laws very purpose is to exclude and stigmatize people, he said, acknowledging a gay family in the hearing room.

Witness Carlos A. Ball, a law professor at Rutgers University, said the Obama administrations decision not to defend DOMA is “both legitimate and appropriate.”

There is “no rational reason” to deny federal benefits to gay couples who are already married under state law, said Mr. Ball, who is openly gay and has written several books on gay issues.

A clear example, he said, is Edith Windsor, an 81-year-old lesbian who in 2009 lost her lifelong companion and Canadian spouse, Thea. Their marriage “was recognized by New York, but not by the IRS,” he said, and since Ms. Windsor could not claim a marital tax deduction for their estate, she was forced to pay more than $350,000 on it.

Arguments about procreation or optimal settings for child rearing “do not help the government defend the rationality of this type of unfair, unjust and, quite frankly, un-American treatment of married couples,” said Mr. Ball, noting that Ms. Windsor, with the help of the American Civil Liberties Union, filed last year the New York lawsuit against the United States.

Other witnesses said the Obama DOMA decision was misguided and stemmed primarily from an effort to cater to gays, a favored special-interest group.

The executive branch knows that, except in rare instances, it is expected to vigorously defend congressional laws, said Edward Whelan, president of the Ethics and Public Policy Center and an specialist on constitutional law.

By refusing to defend DOMA, “the Obama administration has subordinated its legal duty to its desire to please a favored and powerful political constituency,” he said.

Marriage means “the union of husband and wife for a reason,” said Maggie Gallagher, author and co-founder of the National Organization for Marriage. “These are the only unions that create new life and connect those children to their mother and father.”

The governments interest in supporting these vital unions is so deeply embedded in law that the U.S. Supreme Court held in 1888 that without marriage, “there would be neither civilization nor progress,” she said.

Same-sex marriage does not fit with this definition of marriage, she added. Instead, it leads to such a radical transformation of the public meaning of marriage that — as is now happening in Canada — it invites legal recognition of other kinds of relationships, such as polygamy, said Ms. Gallagher.

In addition to the ACLU-led Windsor lawsuit, DOMA is the subject of separate legal actions brought by groups such as Gay & Lesbian Advocates & Defenders, Lambda Legal and Legal Aid Society in San Francisco.

The plaintiffs generally are gay couples seeking federal benefits after legally marrying in a U.S. state or in another country.

DOMA was written with the help of constitutional law specialists as the gay-marriage issue was heating up 15 years ago; it passed with overwhelming bipartisan support and was signed by President Clinton.

In addition to defining marriage under federal law as the union of a man and a woman, DOMA tells states they do not have to recognize another states same-sex unions, as normally happens with marriages now under the U.S. Constitution’s full faith and credit clause.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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