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As Court Deadline Nears, Democrats Ask Boehner About GOP’s DOMA Defense

April 05, 2011 1:11 pm ET by Carlos Maza

House Democrats leading the effort to repeal the 1996 Defense of Marriage Act (DOMA) asked Speaker John Boehner (R-OH) for a briefing on the House’s planned defense of the law Monday.

In a letter written to Speaker Boehner, Democrats, including Reps. Barney Frank (D-MA) and Tammy Baldwin (D-WI), asked for an update on the details, cost, and likelihood for success of the House’s defense of DOMA:

It is our understanding that deadlines for Congressional action are fast approaching and that House General Counsel or outside counsel retained to represent the House must appear and move to intervene or otherwise participate, if it chooses to do so, in at least one case, Windsor v. United States of America, on or before April 18, 2011.

We therefor ask that you brief all interested Members before April 19, 2011 regarding the course of action with regard to Windsor case and any other proceedings where the House intends to defend DOMA. Among other things, we are interested in a status report on who will be representing the House, estimates regarding the cost and length of proposed litigation efforts, the anticipated role of the House in litigation (i.e., intervenor or amicus curiae), and your assessment regarding the likelihood of success on the merits.  If you or House General Counsel already have arranged for representation by outside counsel, we would welcome and appreciate their participation in this briefing.

Boehner will soon be required to reveal much more about the House’s defense of DOMA. As the letter states, Congress has until April 18 to intervene in a case currently challenging DOMA’s constitutionality in federal court, Windsor v. United States of America.

That deadline will put Boehner in the uncomfortable position of deciding how to proceed with defending the law. If he decides to use the arguments laid out in DOMA’s original House report (homosexuality offends Judeo-Christian morality, same-sex marriage will encourage kids to become gay, etc.), he risks alienating the majority of Americans that now support full marriage equality and independent voters who have become increasingly uncomfortable with anti-gay rhetoric.

If Boehner chooses to advance a different defense of DOMA, however, avoiding those arguments as the Obama administration did in earlier DOMA lawsuits, he is likely to come under intense criticism from right-wing family groups who expect Republicans to use their anti-gay talking points to defend the law.

Both strategies have already failed in federal court.


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