King and Spaulding dropping DOMA was due to Clement’s error, not gay bullies
May 13th, 2011
When King and Spaulding announced that they would not be defending DOMA on behalf of the House of Representatives – after partner Paul Clement had announced that they would – anti-gay activists had a field day. Words like “intolerance” and “homosexual activist bullies” screamed across headlines in articles designed to portray the gay community as a collection of thugs who forced a poor defenseless international law firm into following the insidious homosexual agenda.
Even mainstream newspapers and editorial staff immediately assumed that the homosexuals were being too pushy and self-righteously took the opportunity to remind gay people that while gay rights may be worth fighting for, they really are just a “cause”, you see, and not so important that you can’t play nicely. Pointing out to a lawfirm that DOMA hurts gay people is, well, Un-American.
The Washington Post ran an editorial titled King & Spalding and HRC do a disservice to American values in which they declared:
HRC is right to fight vigorously to overturn DOMA, which deprives gays and lesbians of many of the rights enjoyed by their heterosexual counterparts. But it sullies itself and its cause by resorting to bullying tactics.
At the San Francisco Chronicle, a writer indignantly asserted “Case closed. This is intimidation. This is intolerance.”
I do believe that HRC bungled this situation. They behaved like jerks, adopted high-pressure tactics as their first option, and presented our community in about the worst light possible. Threatening to send out letters to K&S clients and then bragging on TV when the case was dropped was about the most stupid course of action that could be imagined.
If there are any of our readers who still contribute to HRC, this might be a good opportunity to look for another organization – one that has a better ear for political tone.
That being said, it is not unreasonable to remind a company – including law firms – that engaging in anti-gay activism or acquiescing to the demands of anti-gay activists will cost them the support of gay people and our friends, family, neighbors, supporters, and all people who value equality. As equality becomes more and more the national favored opinion, companies will find that being “neutral” on matters of sexual orientation equality will be viewed like being “neutral” on racial equality or gender equality. Forward thinking CEO’s may well be receptive to reminders about future image, provided that they aren’t made to be fools in the press.
But as it turns out, neither HRC’s bragging nor anti-gay activists’ shrieking are based in reality. King & Spaulding dropped the DOMA defense because Paul Clement never had it approved in the first place. He signed the case without following procedures or giving the firm an opportunity to measure the benefits or detriments of such a course of action.
The Fulton County Daily Report decided to look into things and found an entirely different chain of events than that which the big papers just assumed had happened. (Via WSJ)
But the Daily Report spoke to two firm lawyers and a third source anonymously who said that the DOMA matter was not fully submitted to King & Spalding”s business review committee, a firm requirement, before Clement signed a contract obligating the firm. They said the committee immediately began reviewing the case the day after the firm learned of the contract—and rejected it the next day, according to the Daily Report.
The sources said the firm’s partners were taken by surprise when news broke that Clement had taken the case. “Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee,” one of the sources told the Daily Report, noting that the DOMA engagement was both controversial and had a discounted rate.
The King & Spalding sources, according to the Daily Report, said that there was widespread, adamant opposition to the DOMA case within the firm. “”It sticks a finger in the eye of people,” said one source, referring to the firm’s gay lawyers and staff.
And, a source said, the case did not fit the firm’s business mission. “King & Spalding is a corporate law firm—not a constitutional firm.”
I believe that there could have been a way that Clement could defend DOMA and that Spaulding & King could have worked with our community to craft a statement that did not back K&S into a corner. But Clement did not consider his firm’s interests and it was his arrogance and presumptions about DOMA and public opinion that ultimately embarrassed the firm.
Attorney General Holder Halts Deportation
May 5th, 2011
Attorney General Eric Holder today has taken the extraordinarily rare step of vacating a decision by the Board of Immigration Appeals, a step which could affect a host of same-sex bi-national couples.
The Board of Immigration had ruled that Paul Wilson Dorman, a citizen of Ireland, was to be departed. Dorman had entered into a New Jersey civil union with an American partner. Under the Defense of Marriage Act, the Board of Immigration Appeals determined that Dorman’s partner was ineligible to sponsor Dorman for a Green Card. Holder ordered that the Appeals Board’s applying of DOMA to the case be vacated and be referred to the Attorney General for further review.
In a filing dated April 26 (PDF: 8KB/1 page), Holder directed the BIA to answer four questions:
In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
What appears to make this particularly interesting is that this case involves a couple who have a civil union, and not a marriage contracted on one of the states which permits same-sex marriage. It is unclear at this time how this decision will impact the case of Josh Vandiver of Colorado and Henry Velandia of Venezuela. They were married in Connecticut and live in New Jersey, where Velandia is to appear before an Immigration board tomorrow for a deportation hearing.
Lavi Soloway, co-founder of Stop the Deportations and Immigration Equality, said, “This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian binational couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.” Solder is defending both Dorman’s and Velandia’s cases before the BIA in New Jersey.
In February, Holder announced that the Justice Department determined that DOMA could only be defended under heightened scrutiny, and that the Justice Department couldn’t defend DOMA’s constitutionality under that criteria. In March, the Justice Department advised the U.S. Citizens and Immigration Service that it should continue to enforce DOMA in processing applications for same-sex couples. This decision appears to be a remarkable reversal of that guidance.
Holder: Decision to Hold DOMA to Heightened Scrutiny Not Political
May 4th, 2011
Rep. Trey Gowdy (R-SC) grilled Attorney General Eric Holder earlier this week on the Justice Department’s decision to hold the Defense of Marriage Act to heightened scrutiny in Federal Courts. From that questioning, blogs led with screaming headlines that Gowdy compared same-sex marriage to child molestation and polygamy. He does go there, but doesn’t go very far. More interesting to me is Holder’s discussion of how they came to the decision to hold DOMA to heightened scrutiny. In the process, he cited another case, relating to Miranda rights, in which the Justice Department chose to argue against the constitutionality of a bill passed by Congress. The fact that Gowdy raised that example himself opened the way to Holder’s knocking down the assertion that the Justice Department’s decision was a dramatic departure because of its refusal to defend a bill passed by Congress.
Bob Barr on conservatism
May 2nd, 2011
During his eight years (1995 – 2003) in the House of Representatives, Bob Barr (R-GA) was best know for his partisanship and conservative advocacy. Long an advocate of Second Amendment rights and suspicious of governmental spending – which he saw in terms of governmental encroachment on a free people – Barr seemingly found no inconsistency in toeing Republican Party positions which supported governmental encroachment on a number of social issues.
In addition to being a strong advocate for the Federal Government’s “war on drugs”, Barr took a leading role in opposing rights for gay people. In 1996, he was the author and chief supporter of the Defense of Marriage Act.
But the bombing of the World Trade center in 2001, coupled with the federal government’s crack down on civil freedoms, woke Barr up. His libertarianism ceased to be (as it is for many Republicans) a platitude around which exceptions are the norm and he began to question whether many of the positions he had one time championed were not actually in direct violation to the principles which he espoused.
Barr’s turn around has been dramatic. In 2006 he left the Republican Party and registered as Libertarian, serving as that party’s presidential candidate two years later. And he has also advocated for the legalization of marijuana.
But perhaps the most unexpected of Barr’s reversals has been his public repudiation of his most notable action in Congress, DOMA. Interestingly, this is not, I suspect, based out of some newfound appreciation for gay people; rather, it seems to flow from a newfound respect for freedom, individual autonomy, and constitutional equality.
Consequently, Barr speaks very differently from other advocates for the reversal of anti-gay governmental discrimination. His is not an advocacy that rails as “the bigots” but rather speaks to the ideals that permeate the writing, if not the thinking, of the Republican Party and it’s leaders.
Speaking over the weekend at the Log Cabin Republicans National Convention, Barr spoke specifically of marriage and the government’s role.
A federal law that burdens a fundamental right is – should – be deemed in violation of the principle of equal protection. When viewed as a fundamental personal decision on the right to associate, it clearly falls within the ambit of the XIV Amendment’s notion of “privileges or immunities.” Prohibitions against same-sex marriage violate the equal protection clause by placing more than a burden on this right – an outright prohibition for one group of individuals to exercise that right legally and to have their contracts enforced by the courts.
This is interesting language in that it brings up a point that our community can sometimes overlook. We tend to talk in terms of what marriage means to us: rights, responsibilities, community, recognition, and equality. Yes, marriage restriction does infringe on hospital visitation and inheritance tax. But those are not particularly strong arguments to those who may see changing visitation rules and tax codes as a solution.
Barr focuses instead on what we, as a people, have the right to expect and demand from our government.
As Linda Harvey flippantly says (and entirely misunderstands) we already can marry, and – contrary to Harvey’s assumptions – we can marry the person we love. And we may marry in every state, in every nation, anywhere we may find ourselves.
Marriage is a contract, a social, emotional, and financial agreement based on terms, conditions, and promises. These vows we may pledge, be it in front of an alter with family, friends and God as witness, or privately and quietly.
We can marry; that isn’t really our issue. Our issue is whether the state will recognize and enforce this contract.
And we have the right to demand that it do so. And opponents who argue that we can have wills, and powers of attorney, and ‘designated funeral-planning agent’ forms to provide “many of the same benefits” should be made to explain why it is that the state may enforce those contracts, but not the one we have already made.
But it is not specific issues, such as gay marriage or gay military service, that should be the focus for conservatives. Such thinking puts the emphasis on the who, not the what.
Barr believes, as do I, that in our approach to policy, we ought not start with the impact some law may have on gay people, but rather on whether any people should be subjected to some arbitrary control over their lives, regardless of their demographic. And it is that argument that can appeal to the principles of some who may never come to see us as morally equal but who can, nevertheless, see us as civilly and legally equal.
What many so-called conservatives fail to realize also is that defending traditional notions of morality (if consistency is to be a component also of our political philosophy) ought to include keeping the government as much out of our personal lives as possible and limiting its power as much as possible. And, speaking of morality, using the collective power of the state to do what individuals cannot do – impose the will of one group of people on another set of people – is truly immoral. We each were endowed by our Creator with one life and we should be free to live it as we see fit, so long as we do not harm another.
Votes Lined Up In Senate Committee for DOMA Repeal
April 26th, 2011
The Washington Blade has looked at some newly announced cosponsors and supporters for the Respect for Marriage Act, which would repeal DOMA. Based on that headcount, RMA has at least ten votes in the Senate Judiciary Committee, which is enough to advance the bill to the Senate floor. Advocates are still trying to build support for the bill in the Senate before they press the committee to hold hearings.
Report: DOMA Law Firm Backs Out
April 25th, 2011
Politico’s Ben Smith says that King & Sanders, the law firm retained by House Speaker John Boehner (R-OH) to represent the House in defending the Defense of Marriage Act in federal court, is extricating itself from its contact. K&S Chairman Robert D. Hays, Jr. issued a statement through its spokesman:
Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.
In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.
K&S Partner Paul Clement was to lead the defense in the case. It’s not clear exactly which issues didn’t pass muster with the Chairman. But given what we’ve learned about the blanket gag order imposed on all K&S employees barring all advocacy for DOMA’s legislative repeal (an issue which is not germane to the case itself), it does appear that the contract was very poorly vetted.
UPDATE: Clement has announced his resignation from K&S, and will join Bancroft PLLC, a small Washington-based firm with former Bush Justice Department official Viet Dinh. I would not be surprised to encounter another announcement saying Bancroft will take up the case instead.
DOMA funding shift is reasonable
April 21st, 2011
Sometimes in the very heated battle over social and civil equality, we respond to situations only from a win/loss perspective. That which we see as advancing our goals is good and anything that has the possibility of deterring us is bad. Often, not just bad, but heinously objectionable, bigoted, and an assault on all that is reasonable or decent.
And it is through that lens that much of our community has measured House Speaker Boehner’s decision to defend DOMA, hire Paul Clement, and fund the defense. Because these actions could result in the continuance of discriminatory treatment they are seen as egregious; and because they impact gay people they are seen as evidence of unbridled hatred and homophobia.
I suggest that such a perspective is myopic and naïve.
So as to avoid angry accusations, let me state what should be obvious and get it out of the way. Yes, I believe that DOMA is a violation of the US Constitution. Yes, many Republicans who are seeking the defense of DOMA are motivated by animus, arrogance, or political cynicism. Yes, I believe that President Obama and Attorney General Holder were correct in determining that anti-gay discrimination meets the requirements for heightened scrutiny and that there is no defense of DOMA that can withstand that standard. No, I am not self-loathing or a shill for anyone or selling out my community.
However, I do believe that each branch of government must be allowed to defend its power. If the Administration opts not to defend a law, the House not only can but should consider how such action accords with the will of its members and act accordingly. The Senate chose to allow the President’s decision to stand but the House chose to defend the vote of its members. This are both reasonable actions in response to the Administration’s action.
I disagree with DOMA and would have preferred that the House, through its leadership, had reached the same conclusion as the Administration and the Senate. But the defense of the House’s DOMA vote is not, de facto, an more of a bigoted action than would be the defense of any other vote.
Nor is it peculiar, unfair, or unreasonable to hire competent counsel.
Some see it as outrageous that the House would divert funds to pay for the defense of DOMA. I find it to be the rational decision.
Those in the House who oppose DOMA have attempted to introduce arguments based less on the matters of constitutionality and more designed as a game of political gotcha. Former-Speaker Pelosi, seeking political points on the matter, implied hypocrisy by noting that Republicans speak of lower governmental spending and here Boehner was going to spend a ton on defending this law.
In response, Boehner noted that Attorney General Holder’s office is entrusted with defending the House’s votes and is funded accordingly. Should he choose not to do so, this frees up funds which would otherwise be so allocated. So, he argues, such funds should be moved to the agency that is willing to engage in this defense. If the House is allocating funds to pay for the defense of its laws, then they money should go to the agency doing the defending.
Yes this is a partisan jab. Yes it is designed to punish the Administration for their decision. But it is also logical and reasonable.
In our continuing battle against institutionalized discrimination, let’s keep focus. The process is not our enemy. The funding is not our enemy. The balance of powers is not our enemy. Rather, the discriminatory language in DOMA is our enemy and we should battle it where it matters, before the court.
In the long run we will not win by silencing the voices of those who support DOMA. We will win by subjecting their views to the harsh glare of judicial scrutiny. And DOMA Section Three is such a violation of the principles of states’ rights – and individual rights – that it is nearly inconceivable that it withstand such glare.
On this I agree with Speaker Boehner: “The constitutionality of this law should be determined by the courts.”
Boehner Prohibits Law Firm Employees From Advocating for DOMA’s Repeal
April 21st, 2011
Chris Geidner, the Metro Weekly’s legal eagle, has been pouring through the contract signed by House Speaker John Boehner (R-OH) and the law firm of King & Spalding, who he contracted to defend the Defense of Marriage Act in Federal court. Geidner found a clause which appears to prohibit all of King & Spalding’s employees, including non-lawyers, from advocating for the Respect for Marriage Act, a bill which would repeal DOMA:
The paragraph in question states that “partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”
Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.
Jon Davidson, the legal director for Lambda Legal, told Metro Weekly that the provision might be illegal in California and other states, and would expose King & Spalding to civil liability. This provision appears to bar people from legitimate activities unrelated to their work at the law firm.
King & Spalding is headquartered in Atlanta. Local LGBT advocates express disappointment over King & Spalding’s contract with Boehner. They note that King & Spalding have donated money to the Stonewall Bar Association, promotes its support for the ACLU’s LGBT and AIDS project, and has provided some pro bono work in unspecified cases in support of LGBT issues.
House To Spend $500K To Defend DOMA
April 20th, 2011
House Speaker John Boehner (R-OH) has announced that he has contracted with a law firm to defend the so-called Defense of Marriage Act in court, in response to the Obama Administration’s announcement that they consider DOMA’s defense as requiring heightened scrutiny. Former Bush Administration U.S. solicitor general Paul Clement was tapped to defend DOMA on behalf of the GOP-controlled House to the tune of $500,000, funds which Boehner says he will strip from the Justice Department’s budget. Clement is a partner at the D.C.-based office for the firm King & Spalding where he manages the national appellate practice. Clement has argued more than 50 cases before the U.S. Supreme Court.
Metro Weekly has looked into the contract Boehner signed with King & Spalding, which specifies the firm’s defense in Windsor v. United States. That case was brought by Edith Windsor, the widow of Thea Spyer, who had to pay a $350,000 estate tax that she would not have had to pay had their Canadian marriage been recognized by the federal government. The contract sets a cap of $500,000 to defend DOMA in Windsor v. United States, but the contract has a provision which suggests that the cap can be raised. The contract does not authorize the hiring of outside experts without approval from the House. Metro Weekly noticed a non-discrimination clause in the contract:
It also is notable that the nondiscrimination clause in the contract states that King & Spalding “will not discriminate in its performance of this Agreement because of race, color, religion, sex, national origin, age, disability or any other prohibited basis.” Neither sexual orientation nor gender identity are included. This despite the fact that the firm clearly does include such categories in its own nondiscrimination policy.
DOMA is currently being challenged in at least twelve separate court cases around the country.
Immigration Resumes Deportation Procedures Against LGBT Spouses
March 30th, 2011
“The guidance we were awaiting … was received last night, so the hold is over, so we’re back to adjudicating cases as we always have,” U.S. Citizenship and Immigration Services press secretary Christopher S. Bentley told Metro Weekly this morning.
…Asked if districts would be able to put cases on hold while awaiting a final court determination about the constitutionality of DOMA, Bentley said, “No. The guidance is the same policy that has always been in place,” which he said is to “enforce the law.”
Asked if that means applications of same-sex bi-national couples would continue to be denied now as they had in the past, Bentley said, “Correct, based on the enforcement of DOMA.”
Bi-National LGBT Immigrant Deportations On Hold
March 28th, 2011
That’s according to Metro Weekly, which just confirmed with a spokesman for the U.S. Citizenship and Immigration Services, that deportation cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold, pending questions about the continued validity of the Defense of Marriage Act:
He notes, however, “USCIS has not implemented any change in policy and intends to follow the President’s directive to continue enforcing the law.” The legal distinction means that although DOMA is still being enforced, the USCIS is using its discretion to hold off on denying green card applications where applicable.
Last month, President Obama’s Justice Department announced that they would only defend section 3 of the Defense of Marriage Act under heightened scrutiny, which effectively means that due to the discriminatory nature of the act, the DoJ believes it to be unconstitutional. Section 3 holds that the Federal government is not required to recognize same-sex marriages at the state level. However, the federal government is free to establish alternative arrangements. For example, beginning in 2009, widows of U.S. citizens are no longer subject to deportations even though, by definition, they are no longer married to a U.S. citizen.
DOMA As A Wedge Issue, Ctd
March 18th, 2011
A newly released Washington Post-ABC News poll confirms what other recent polls have shown, that a majority of Americans support marriage equality. That majority remains a slim one when one considers the 3.5 percent margin of error. But five years ago, only 36 percent supported same-sex marriage; today, 53 percent do. That’s a 47 percent increase in a very short amount of time. WaPo notes some significant trends:
In the new Post-ABC poll, the shift has been driven by several political and demographic groups whose support for such unions jumped sharply. Men, who previously were less supportive of same-sex marriage than women, now back it at the same rate. Support among college-educated whites, political independents and people who do not consider themselves religious also rose substantially.
ABC News breaks it down further:
While younger adults and liberals remain at the forefront of support for gay marriage, the new results underscore its expansion. In an ABC/Post poll five and a half years ago, for example, under-30s were the sole age group to give majority support to gay marriage, at 57 percent. Today it’s 68 percent in that group – but also 65 percent among people in their 30s, up a remarkable 23 points from the 2005 level; and 52 percent among those in their 40s, up 17 points.
…Support is up by a striking 23 points among white Catholics, often a swing group and one that’s been ready, in many cases, to disregard church positions on political or social issues. But they have company: Fifty-seven percent of non-evangelical white Protestants now also support gay marriage, up 16 points from its level five years ago. Evangelicals, as noted, remain very broadly opposed. But even in their ranks, support for gay marriage is up by a double-digit margin.
You can see the poll itself here (PDF: 85KB/3 pages). It should be noted that the margin of error for these smaller sample groups would likely be significantly greater than the poll’s overall ±3.5%. The released information does not provide margins of errors for the smaller groups, so we don’t know whether those majorities are significant in themselves, but the trend at least probably is. Especially, this trend:
Support has grown by 17 points among Democrats, but also by 13 points among independents, to a clear majority, 58 percent, in the crucial political center. And it’s 63 percent among moderates, up 21 points.
Opposing marriage equality is a losing political proposition for everyone except the conservative GOP base. Not too long ago, supporting marriage quality was a losing proposition for everyone except the liberal Democratic base.
That’s what made it the definitive wedge issue — it drove a wedge between the crucial moderates and independents from Democratic candidates. Which left the Democratic candidates sputtering that marriage bans were cynical distractions from more important issues facing the country — jobs, the economy, the global war against terrorism, whatever. Those weak arguments are why we got steamrollered in the elections.
Now, we have a president who will defend DOMA only under heightened scrutiny, and Democratic legislators introducing legislation to repeal DOMA in both houses of Congress. And in response, it’s conservative Republicans’ turn to complain that efforts to dismantle DOMA are a cynical distraction. My how times have changed.
Update: Indiana Republicans have seen the writing on the wall, and are abandoning efforts to amend the state constitution to ban marriage equality.
DOMA Fight The New Wedge Issue
March 17th, 2011
Except this time, it’s the pro-equality side who win:
In what is perhaps a watershed moment in the long fight for gay rights, the current battle over the Defense of Marriage Act is being waged with at least tacit acknowledgment from all sides that it is a political winner for pro-gay-rights Democrats.
…On Wednesday, House and Senate Democrats held separate press conferences announcing the introduction of legislation to repeal DOMA. Rep. Barney Frank (D-MA), one of the sponsors of the House bill, was asked whether Democrats were politicizing gay rights as a wedge issue against the GOP, as Majority Leader Eric Cantor alleged last month.
“What do I say to the idea that this is a wedge issue? I say ‘Hallelujah,’” Frank told reporters. “The fact that we’ve now evolved to the point where the Republicans are complaining about the fact that we introduced this bill because it causes them political problems is a great sign of progress. It used to be the other way around.”
Boehner Announces Defense of DOMA
March 9th, 2011
TPM reports that House Speaker John Boehner (R-OH) has issued a statement announcing that the House will intervene as a third party defendant in court cases challenging the constitutionality of the Defense of Marriage Act. TPM quotes from the statement:
“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said in the statement. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”
Of course, the president didn’t determine the law’s unconstitutionally unilaterally. The administration instead determined that they could not defend the law’s constitutionality based on the facts and heightened scrutiny. The administration also threw some bait in Boehner’s direction, pointing out that the House was perfectly within its rights to argue in court that that the law did not result in discrimination against LBGT couples. Boehner dropped the “only interested in the budget” charade to take the challenge. This should be fun.
The Hill reports that the action was taken based on a party line vote following a thirty-minute meeting, with Boehner joining House Majority Leader Eric Cantor (R-VA) and House Majority Whip Kevin McCarthy (R-CA) supporting the move. House Minority Leader Nancy Pelosi (D-CA.) and House Minority Whip Steny Hoyer (D-MD) voted no.
Log Cabin Head Backs Boehner’s Steps Toward Defending DOMA
March 5th, 2011
LCR issued a press release calling on House Speaker John Boehner not to “take the bait” on DOMA. Now that Boehner is taking initial steps to do precisely that, LCR’s R. Clarke Cooper is covering his back, although he says that his support is limited to the current exploratory steps.
Log Cabin Republicans are still battling to have “Don’t Ask, Don’t Tell declared unconstitutional. While the Congress and Administration have already taken steps to have the law fully repealed sometime this year, the issue remains that repeal will not include an anti-discrimination clause. And with out that, future presidents will be free to impose a ban on gays serving in the military unilaterally via executive order. LCR has denounced the Justice Department for continuing to defend DADT.
Boehner responds to Obama’s refusal to defend DOMA
March 4th, 2011
House Speaker John Boehner has announced the direction that he will go in response to Attorney General Holder’s declaration that he and President Obama would no longer defend the constitutionality of the Defense of Marriage Act. And it appears, to me, to be a measured and non-hysterical response. (WaPo)
Boehner said he will convene a meeting of the Bipartisan Legal Advisory Group, a first step toward taking action in the House to defend the law.
“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner said in a statement. “The constitutionality of this law should be determined by the courts – not by the president unilaterally – and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”
On the Bipartisan Legal Advisory Group are the top three House Republicans – Boehner, Majority Leader Eric Cantor (Va.) and Majority Whip Kevin McCarthy (Calif.) – and the top two House Democrats – Minority Leader Nancy Pelosi (Calif.) and Minority Whip Steny H. Hoyer (Md.).
The group has the authority to instruct the House general counsel to take legal action on behalf of the House. It typically gets involved in situations where leaders believe there are institutional or separation-of-powers concerns.
This is, in other words, the appropriate group to consider whether there is any issue of the President acting in a manner that violates the rights of the Congress.
Boehner is walking softly on this issue, and this “all by the book” response is far more measured that I would have predicted. I wasn’t expecting him to appoint the Pacific Justice Institute to represent the House, but I also wasn’t expecting him to treat the matter as though the President’s position should be given any thought before responding or to invite the Democratic leadership to participate in the response.
And the language he has selected – language that does not insist that DOMA is constitutional and makes no appeal to “protecting the family” or “the will of the people” or even a reference to a “homosexual agenda” – speaks of disapproval of process or timing rather than homophobic posturing.
It is far too little and far too soon to read too much into this (and I am aware of my inclination to look for the silver lining), but somehow it feels as though there has been a shift. It feels to me as though the Republican leadership may be moving away from knee-jerk dismissal of the claims of gay citizens. It’s hard to put my finger on it exactly, but it feels different, as though they aren’t agreeing or supporting, but finally they’ve started listening.
Boehner to Announce DOMA Defense by Week’s End
February 28th, 2011
So much for focusing on the budget:
Asked if the House would appoint a special counsel to defend the law itself in the White House’s stead, Boehner said, “It’s an option being considered” and added that he would likely have a decision on how to proceed “by the end of the week.”
“I’d be very surprised if the House didn’t decide that they were going to defend the law,” Boehner said. Surprisingly, he suggested that the move was likely beneficial to Democrats in the next election.
House Speaker John Boehner also spoke to David Brody of Pat Robertson’s Christian Broadcasting Network over the weekend:
David Brody; “Rick Santorum says that the Speaker of the House should appoint a counsel representing the House of Representatives to take up the case and argue DOMA in federal court. Is that a good idea?”
Speaker John Boehner: “It’s an option being considered.”
David Brody: ”And on these options the bottom line is that something is going to happen from the House and something will get done?”
Speaker John Boehner: “I’d be very surprised if the House didn’t decide that they were going to defend law.”
David Brody: “How frustrated are you with this President? Do you believe it’s an overreach to the point where it gets back to the Czar issue to a degree?”
Speaker John Boehner: “It strikes me as something that’s just as raw politics as anything I’ve seen knowing that a lot of people who believe in DOMA are probably not likely to vote for him and pandering to the other side on this issue.”
Obama’s DOMA Strategy “Deep and Cynical”?
February 25th, 2011
Jason Kuznicki at the Cato Institute wrote, “Jim Burroway hints that Obama’s strategy here is both deep and cynical.” If there is a hint of that in what I wrote, then that hint was the furthest thing from my mind. Given the particular circumstances that arose in the two cases that brought about this announcement (specifically that there is no legal precedent in this particular circuit of Federal Court as to which level of scrutiny is appropriate for DOMA challenges), I think the administration’s determination is highly principled and well-supported, or, in Kuznicki’s word, “deep” (although he may have meant that differently than I do).
It does not, however, mean that there are no potential political repercussions emanating from the announcement, and my pointing them out was not based on a suspicion of a “cynical” motive. Surely, Holder did dangle a political carrot in front of Boehner (and, more broadly, in front of social conservatives who would surely urge Boehner to grab it) by pointing out that Congress can decide to defend DOMA. And there’s no doubt that most Democrats would strategically, if quietly, welcome just that very move, which would then be taken as evidence that the GOP isn’t serious about focusing exclusively on the deficit. — which would be the very definition of cynicism. But that latter part isn’t evidence of cynicism behind the Administration’s legal decision itself. It’s simply an observation that there are rippling repercussions from the decision; some of them are political and some of the political reactions will also be cynical — as if anyone would be surprised by that. I don’t mind Kuznicki’s putting the cart before the horse; he sees things differently from me. I would just rather he hadn’t tried to put my words in the horse’s mouth.
Mike Huckabee on Obama’s DOMA Decision
February 25th, 2011
Obviously, he’s not happy with it. He also hints that if he became president, he would re-impose “Don’t Ask, Don’t Tell.”
Will Obama’s DOMA Decision Backfire?
February 25th, 2011
That’s what Daily Beast’s Eve Conant and Daniel Stone seem to think after talking with ant-gay activists who see an opening in the Administration’s new stand on defending the so-called “Defense of Marriage Act” in the courts.
By failing to defend marriage, the administration may open the door for those passionately opposed to gay marriage to have what they feel they’ve been lacking: a stronger legal voice. In Massachusetts, which is also in the midst of a legal challenge to DOMA, traditional marriage activists, after the initial shock, are finding themselves equally emboldened. Kris Mineau of the Massachusetts Family Institute says, “It’s a horrible situation when the president and the attorney general refuse to carry out their constitutional duties. We are now asking Congress to do its job.” But he says the law, in his view, “says that under unusual circumstances people who are friends of the court can participate in oral arguments.” Previously barred from doing so in the state’s key DOMA challenge, Gill v. Office of Personnel Management, he says, his legal team is working on documents to take part in oral arguments “with real resources and with people who have a passion for success” in battling gay marriage. Mineau says the government’s defense of DOMA thus far “has amounted to something along the lines of ‘we’re personally against DOMA but we’re here today to defend it.’” That watered-down approach, he says, left traditional marriage supporters feeling hopeless.
If the Justice Department’s stand that DOMA should fall under heightened scrutiny holds sway in the courts, then groups like Massachusetts Family Institute with their impassioned position against same-sex marriage would actually prove the Administration’s case under one important aspect of heightened scrutiny: a history of discrimination. We already saw how well this played out so far in California, where widespread evidence of discrimination and expressions of anti-gay bigotry became important pivots on which Federal Judge Vaughn Walker’s decision rested.
On the other hand, Conant and Stone argue that the GOP-led House could try to take the case completely out of the DOJ’s hands altogether so that they would not even be present in court to argue for heightened scrutiny:
Committee lawyers have been summoned early next week to meet with Boehner and other officials to discuss their options. One leading strategy would be to stage a sort of legislative intervention, in which Congress’ counsel would remove the Justice Department’s authority to defend DOMA.
Administration officials aren’t opposed to that idea. In a letter to Boehner, Attorney General Eric Holder suggested Republican leaders appoint more lawyers to defend the law themselves, without Justice attorneys.
I see two potential problems here: If Congress were to intervene and remove DOJ’s authority to defend DOMA, wouldn’t the Democratic-controlled Senate have to go along with it? And secondly, as I read Attorney General Eric Holder’s letter, I don’t get the sense that he agrees that DOJ should be removed altogether from defending DOMA or that Republicans leaders should defend the law themselves “without Justice attorneys,” as if Justice would be willing to voluntarily step aside. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation,” he clearly added, after acknowledging that Congress can play a role in defending the statute.