House Republicans and conservative groups are working together behind the scenes to fill the legal void created Wednesday when the Obama administration announced that it would no longer defend the federal law banning gay marriage.
The House leadership likely will introduce a resolution early next week to intervene in the four lawsuits pending against the Defense of Marriage Act, better known as DOMA, the 1996 federal law that defines marriage as between one man and one woman, conservative leaders say.
“I know there have been discussions. I’ve been part of the discussions,” said Tony Perkins, president of the Family Research Council. “The question is how to handle this hot potato. The president is trying to throw a monkey wrench into what’s been a very unified majority.”
Jordan Sekulow, policy director for the American Center for Law and Justice, said that although individual members could introduce their own measures in support of the law, he expects Republicans to present a united front with one resolution.
“We’re already in private discussions with members of Congress about defending DOMA,” said Mr. Sekulow. “A unified voice coming from the House would be more powerful.”
The consensus was that such a resolution would pass easily and with bipartisan support. “I don’t think there’s any question that this would pass,” Mr. Perkins said.
Attorney General Eric H. Holder Jr. announced Wednesday that he considered the law’s “one man, one woman” section unconstitutional, and therefore the Justice Department would cease defending it against legal challenges.
Supporters of gay marriage had long urged the Obama administration to abandon its defense of the law, but attorneys on the case insisted as recently as January that the Justice Department would hold to “the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.”
The decision effectively leaves the law defenseless in the face of four lawsuits, two filed in federal court in Massachusetts and two filed in federal court in New York. The Massachusetts cases are now at the appellate level.
“That’s a huge-level disadvantage for whoever takes this up,” said Mr. Sekulow. “Briefs are due soon in the 1st Circuit [Court of Appeals]. Congress is out of session this week. As of now, there’s no one defending DOMA.”
At the same time, the administration may have done opponents of same-sex marriage a favor by allowing the House to substitute lawyers who have no conflict about defending the law. Conservatives have complained about the Justice Department’s less-than-zealous legal defense.
“The Department of Justice’s litigation efforts have been so anemic that this does pave the way for someone to give this law the vigorous defense it deserves,” said Dale Schowengerdt, a lawyer with the Alliance Defense Fund.
The Justice Department’s decision also comes with a political benefit. President Obama has never formally announced his support for same-sex marriage, but by declaring the federal traditional-marriage law unconstitutional, he shores up his support among gay voters, said Mr. Sekulow.
“He wants the support of the gay community in 2012. This way he doesn’t have to pass a gay-marriage law, and he makes the Republicans address it in a direct way,” said Mr. Sekulow.
From a constitutional perspective, however, critics say the Obama administration may be doing long-term damage to the practice of a checks-and-balances system in which the legislative branch passes laws and the executive branch defends them.
Gay rights groups say the move is justified because the law is blatantly unconstitutional because it discriminates against same-sex couples. But conservatives say the move could come back to haunt Democrats.
“In the long term, he’s setting a precedent for a Republican president in 2012 to say, ‘I’m not going to defend Obamacare,’” said Mr. Sekulow. “So it may sound like a good idea now, but what about the future?”