Pelosi: If Dems Win The House, DOMA Defense Goes Away

Jim Burroway

June 7th, 2012

So says House Minority Leader Rep. Nancy Pelosi:

“First of all, we can expect something to go away, like stop spending taxpayer dollars on the Defense of Marriage of Act, which is a waste of money and not the right thing to do,” Pelosi said.

…She said she thinks Republicans believe DOMA is unconstitutional because when they controlled the House under the Bush administration, they tried to pass court-stripping provisions denying judicial review for the anti-gay law and others.

“They had to know that there was a weakness constitutionally in that bill, if they would want to put court-stripping provisions in relating to DOMA and the rest,” Pelosi said. “So, we think they know it’s weak constitutionally.”


June 7th, 2012

Assuming that does happen – that the Democrats get control of the house, senate, and the white house.

Who would be the logical choices to step in to defend DOMA in court?


June 7th, 2012

With Democrats in house, senate, and presidency, they might manage to pass a repeal. But supposing they don’t… how would we *ever* get rid of DOMA if it’s not defended? No defense means an easy win in court every time… but it also means no appeals. Wouldn’t that mean the law remains in place and enforced, and everyone who’s affected by it has to sue to get it unapplied in their individual case?

Timothy Kincaid

June 7th, 2012

Someone is going to defend this ulcerous dog. If not Clement and the BLAG, then the courts will allow some intervener. But I’m not sure I want anyone other than Paul Clement defending DOMA.

Clement is brilliant, truly brilliant. His arguments before the SCOTUS on Obamacare were genius. But, for reasons that baffle us, he’s losing DOMA arguments in every court he ventures into (if he even shows up). And at the risk of sounding uncharitable, against attorneys and judges that are not at all of his caliber.

I’m not yet willing to surmise that he’s losing on purpose, exactly. But ya know what they say, if it ain’t broke don’t fix it.

David Waite

June 7th, 2012

@ TominDC: There would no longer be a defender, logical or otherwise, and a defendant isn’t required for a judge to rule on constitutionality at the District Court level; only the DoJ, the House and the Senate (separately or together for House and Senate) have standing to defend the constitutionality of a federal law. In the Proposition 8 constitutional challenge in federal courts the Proponents were granted standing to defend because Prop H8 is a state law. Nevertheless..

@ Hyhybt: DOMA would have to be defeated Federal Court District by Federal Court District. As long as no District Court found DOMA constitutional, that would legally suffice to overturn it when the last District ruled against it. However..

@ Timothy: District Courts aren’t allowed to appoint intervenors and Appellate Circuits aren’t allowed to take a singular unappealed District Court decision. If two District Courts in the same Appellate Circuit rule differently on the same law, the Circuit then steps in to resolve the legal conflict, and can (and would) appoint an intervenor defending lawyer. Similarly, the SCOTUS can’t touch a case until there is conflict between the rulings of two or more Circuits.

But those rules apply to simple (single part) federal laws. DOMA is a complex (multi part) law which has already been ruled on differently, and only been partly overturned. The SCOTUS could take it up right now, and in the Fall they will. The SCOTUS could and probably would reappoint Clement, and directly or indirectly require the Congress to pay him. They could alternatively appoint un-deceased out-of-office legislative authors of the law or out-of-office congressional legislative leaders (at the time of passage) who were in favor of passage.

Trying to predict the SCOTUS is probably less wise than gambling against the house in a casino, but I’m betting that (because of the fallout from Bush v Gore and from Citizens United) they’ll stick to their own rules on DOMA.

Timothy Kincaid

June 7th, 2012


If you are correct that they will take up DOMA in the fall (most likely Gill/Massachusetts) then it’s all moot anyway. Regardless of election outcome, Obama will be president through mid January 2013 and the new Congress isn’t seated until January 3, 2012. Boehner’s lame-duck representative, Clement, will be the defense of DOMA3 through that time.

Mark F.

June 8th, 2012

Yes, Clement is a good attorney. I guess he just can’t come up with many very good arguments. That does not mean SCOTUS won’t latch on to some reason to uphold the law.

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