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House Republicans stop anti-marriage efforts

Timothy Kincaid

July 18th, 2013

In a slightly oddly worded filing, the House Bipartisan Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, has ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. The BLAG’s last-minute filing in a case involving service member’s marital benefits was the venue through which this retreat was announced. (BuzzFeed)

The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.

In other words, while Windsor only addressed DOMA3, not the myriad of laws that are written such that they limit application to male-female marriage, the decision on DOMA3 made clear the court’s intent. And so – unlike the Proposition 8 supporters in California – the Republicans in the House will not spend any more time or money fighting the minutia in court.

This is a bit further than I expected.

The broad stroke exclusion of gay couples found in DOMA3 was struck down as unconstitutional. This does not mean, from a legal perspective, that every exclusion of same-sex couples is unconstitutional. The BLAG could have continued on a case-by-case basis to argue that while broad exclusion is not allowed, in the instances at question there are good and valid governmental interests in upholding unequal laws and it’s possible that they would prevail in some.

So this decision to pull out and the language utilized suggests that more than just a legal determination has been made. This also heralds a shift in political will.



Sir Andrew
July 18th, 2013 | LINK

This now leaves millions of our taxpayer dollars that John Boner can now waste on other unnecessary things.

But at least he’s stopped wasting OUR money fighting OUR rights. That has been one of the uglier aspects of BLAG.

July 18th, 2013 | LINK

I am surprised seeing as he and the other GOP members wasted millions trying to fight to keep DOMA.

July 18th, 2013 | LINK

And lots of time trying to double down on DOMA for the military during DADT repeal.

July 18th, 2013 | LINK

I actually think they gave up precisely because they COULDN’T find a “good and valid governmental interest in upholding unequal laws” and realized that they had little to no chance of prevailing in any attempt to convince a court that there were. They knew that their arguments held no legal or constitutional weight so they decided to cut their losses and stop throwing good money after bad.

I’d be interested in hearing some of the valid governmental interests in upholding unequal laws that Timothy is alluding to.

Timothy Kincaid
July 19th, 2013 | LINK


Don’t ask me, ask the Justice Department.

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