Boehner Announces Defense of DOMA

Jim Burroway

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.

Timothy Kincaid

March 9th, 2011

I am, so far, impressed with the way in which this has been handled.

I think that Obama and Holder correctly determined that they could not apply the court’s standards and still argue for rational basis. Further they are correct in noting that the defense has no case if some level of heightened scrutiny is applied.

They responded appropriately by notifying the court that they could not make a case defending the constitutionality of DOMA Section 3.

However, they also acted appropriately in not acting unilaterally but in inviting the House to defend the constitutionality of the law. This showed respect for the separation of powers and elevated the decision from purely political to principled.

And I do think that Boehner acted correctly in assembling the Bipartisan Leadership Advisory Group. This issue goes to whether the President acted appropriately in his actions. That the Leadership Group issued no condemnation of the President recognizes that circumstances such as this arise and that his action was not some abdication of his duties.

I do not fault the Republicans for directing the House Counsel to initiate a legal defense of the law. While I long for DOMA 3 to be overturned, I prefer that it be either reversed by the legislature or given a defense before the courts. (Alternately, had the House leadership chosen not to defend its position, that would also be an appropriate legislative response.)

And regardless of my personal abhorrence of DOMA 3, the fact that the President and Attorney General find no argument in its defense does not mean that there is no argument in defense.

For example, the House Counsel could argue that precedent established in other judicial districts should lead to the cases being tried using the rational basis test. Or perhaps that gay people are no longer politically weak. Or that sexual orientation is not immutable.

I don’t find any of those arguments to be convincing, but I don’t object to their being presented.

Or the House Counsel may argue that even with some form of heightened scrutiny, the federal government’s interest in advancing heterosexual-only marriage is so compelling that it is entitled to anti-gay discrimination. Again this is a position that, while very weak, is not indefensible.

But, I commend Boehner for resisting the temptation to invite passionate anti-gays into the mix. The House Office of General Counsel is the appropriate choice; as this situation could be seen as defending the right of the House to make such decisions, this would fall under their purview.

The OGC provides legal advice and assistance to Members, committees, officers and employees of the House, without regard to political affiliation, on matters related to their official duties. The OGC represents Members, committees, officers and employees, both as parties and witnesses, in litigation arising from or relating to the performance of their official duties and responsibilities. The OGC also represents the House itself in litigation, both as a party and as amicus curiae in cases in which the House has an institutional interest.

Now, we will see what they do and the approach they will make.

Kerry W. Kircher, the current General Counsel, was selected by Rep. Boehner but appears to be a practical rather than political selection. He has worked in the Office of General Counsel since 1995 and was the number 2 guy when his boss left.

While there isn’t much out there on Kircher, he certainly isn’t a partisan Republican. Whatever his party affiliation (which I don’t know), he was part of the House’s team that sued the Bush Administration over whether White House officials were exempt from congressional subpoena due to executive privilege.

In the meeting today he indicated that he would be required to hire outside counsel and that the case would not be inexpensive. However, while it is not yet completely clear, it appears that the defense will be under Kircher’s direction and oversight. I suspect that his highest priority be that the House’s role in government be protected and I see no indication that he is personally anti-gay or driven by conservative religious idealism.

As to Boehner’s “unilateral” comment, he is not incorrect.

Had the President determined that he would not defend a law in a case because it was unconstitutional, and had he disallowed any intervention, this would almost certainly lead to the lower court finding that the law was unconstitutional and if not appealed it could well be a unilateral determination of unconstitutionality.

He did not do that. His invitation to Congress to intercede (there is some question about their legal entitlement to do so without his approval) made it a decision of Congress as well. My only quibble with what Boehner said is that whether the House chose to defend DOMA 3 or chose not no, the decision ceased to be unilateral upon their inclusion.

David in Houston

March 9th, 2011

I love how he says, “…a Bipartisan Leadership Advisory Group…”

Yeah, because we’re all too stupid to know exactly how three Republicans and two Democrats will vote. It’s an insult to Americans to use the term bipartisan when it’s anything but that. At least be honest and call it the Evangelical Christian Kangaroo Court Charade.


March 9th, 2011

I find it striking that the “Legal Advisory Group” has suddenly become an Executive group of the Congress, with the power to hire/retain legal counsel and to litigate, without a full vote of the House and with no guidelines on how external counsel is to be selected.

Is that even possible under the House rules?

Timothy Kincaid

March 9th, 2011

David and Amicus,

It’s not “…a Bipartisan Leadership Advisory Group…”. That’s its name.

The Bipartisan Legal Advisory Group (BLAG)[1] is a standing body of the U.S. House of Representatives. Comprising 5 members of the House leadership (the Speaker, the majority and minority leaders, the majority and minority whips), it directs the activities of the House Office of General Counsel.[2]


March 9th, 2011

Thanks for explaining it in a way where I don’t have to have a J.D. next to my name to comprehend it.


March 9th, 2011

@Tim, my quick glance at the rules reveals that the name is “Bipartisan Legal Advisory Group”, which is composed of the top leadership.

I didn’t see anything that says the advisory group’s opinion is binding. It is the Speaker who directs the House General Counsel (even sets their salary).

I don’t know these elements well. The House General Counsel seems more analogous, institutionally, to the White House Counsel than to the Attorney General.

We still don’t have information on what the fact base is that GenCounsel Kerry Kirchner is using, when Eric Holder has come to a different determination.

The General Counsel is meant to furnish legal services in a bipartisan manner. How does one square that with hiring the ADF, for instance?


March 10th, 2011

(oh, I see what’s unclear. In the above, I should have used a lower-case “e” in “executive”, i.e. how does an “advisory” group take on a say-so character, when acts of Congress we typically understand, especially when significant or extra-ordinary money is involved, to take a vote.)


March 10th, 2011

This is, of course, not a surprise to anyone, anywhere. If the GOP hadn’t stepped in, they would face the wrath of their socially conservative constitutes. Im guessing the Log Cabin-ites would never had filed in the first place had they known they’d eventually go up against fellow Republicans. I can’t make heads or tails of your arguments, Timothy. You think the law is unconstitutional, but ought to be defended anyway? Prior to this, did you support Obama and the DOJ’s defense? I’m pretty sure I remember you did not. So it now comes down to Kennedy, just like the Prop 8 case eventually will. Ted Olsen says he “can count to five ” . Let’s hope he’s right.


March 10th, 2011

Actually, this is a shrewd political move on Obama’s part. He only ticked off people who won’t vote for him anyway, too steps to repair his relationship with a key constituency and left the door wide opening for the GOP to expose more of their bigotry to the world at large, which can’t hurt Obama.

Priya Lynn

March 10th, 2011

Timothy said “Or the House Counsel may argue that even with some form of heightened scrutiny, the federal government’s interest in advancing heterosexual-only marriage is so compelling that it is entitled to anti-gay discrimination. Again this is a position that, while very weak, is not indefensible.”.

No, it is indefensible. There is no case to be made that the government has an interest in advancing heterosexual-only marriage as preventing gays from marrying in no way helps advance heterosexual marriage.


March 10th, 2011

I would like to know if a Democratic House did form a panel to defend any of the Five Cases that then President Reagan decided [“unilaterally”?] to not defend, or if a Democratic Majority has Ever taken such steps in relation to Any Case, as Republicans have done in relation Particularly to the Sexual Orientation of Law Abiding Citizens? Anybody?? _________________

And Boehner will utilize House General Counsel (to do the dirty work). Can we correctly assume that the American People will not be made aware of the Amounting Cost to Taxpayers of these irregular proceedings? Likely.

The Republican House is now The Main Player in withholding Constitutionally Guaranteed Equal Protections to a Specific Class of American Citizens.

They own this. They zealously oppress Minorities. History is written, and in a day of modern technology no less. We will not miss a single drop.

enough already

March 10th, 2011

There is a world of difference between ‘justice’ and ‘law’.

Have our constitutional rights been abrogated? Yes, absolutely.
Is it legal to treat us as sub-human and to deny us our civil rights?
Also yes, absolutely.

The problem we face is very simple. The majority of people either don’t care one way or the other or are on our side to the extent that our rights don’t conflict with more important issues.

Those who hate us, however, are passionate about it. While disenchanted liberals and moderates vote for the greens or sit ‘this one out’, they always vote and they always vote teaparty or conservative Republican.

Boehner is playing to those who always vote. It’s really that simple.


March 10th, 2011

I managed to do a search and find a couple of quotes where you seemed to condemn Obama for defending DOMA, Timothy.

“According to GLAD, briefs will be filed before First Circuit Court of Appeals probably between now and next spring, with oral arguments likely to be heard in the fall of 2011.

The Department of Justice had an obligation to defend the law. But there is no legal obligation to appeal the rulings of the court.

Fierce advocate in action.”

And: “I don’t think we would be satisfied to stop at Massachusetts, but rather that we would build on this victory – limited as it is. Just as we took the victory for marriage in Massachusetts and are now building it by a state-by-state movement, so too would we challenge DOMA in each state in which marriage equality exists.

This decision – if left unchallenged – would have provided precedent, especially in the First Circuit were most of the other marriage states reside. Yes, it would have been a temporary delay in four states, but it would mean immediate recognition in one. As it stands, we have no federal recognition now, anywhere.

Please recall that this decision, if we were to prevail at the SCOTUS level does not have impact on all 50 states. Rather, it ONLY impacts those which already have marriage. So this is not a 49 to 1 fight. Rather it is a 5 to 1 battle over timing.

If we lose at SCOTUS, we have NO states with federal recognition. If we win, we will have five.”

So, what’s changed? Other than the political party of the defendants?

Timothy Kincaid

March 11th, 2011


Yes, it is “Legal”, not “Leadership.” I wonder if that was a misspeak of Boehner or a typo of the reporter.

We don’t yet know what Kircher will do, but I doubt he’ll hire ADF. The Prop 8 Proponents were smarter than that and they ain’t no rocket scientists, if ya know what I mean.


First, the Log-Cabinites lawsuit is DADT, not DOMA. And they go up against fellow Republicans on a very regular basis; you might say that it’s what they do. And you will recall that Bush was in office when they filed that lawsuit.

You think the law is unconstitutional, but ought to be defended anyway?

Almost. I think it is unconstitutional, but that Congress should be given the opportunity to defend it. Which is what Obama did.

And while it would have been great for Boehner to say, “ya know what, I agree it’s unconstitutional” I don’t find it to be wrong, necessarily, for the leadership to defend the laws passed by the members – even when its a bad law.

I feel more comfortable with the idea that there is process here, a method of addressing the situation that is somewhat outside the usual partisan “win at all costs” approach usually taken by politicians. It seems to me that Obama and Boehner are both carefully approaching this issue in a way that history can’t look back and say that either was heavy handed.

And, I like that while this seldom arises, there is a method to deal with a DOJ refusing to defend a law. Write it off to me being an accountant, if you like.

Prior to this, did you support Obama and the DOJ’s defense? I’m pretty sure I remember you did not.

Nope, I didn’t. I argued that he could simply agree that the law is unconstitutional and not appeal.

And – in the Second Cirtuit – he did a step better, he did the “Schwarzenegger defense”. And I’m delighted. He’s refusing to defend the law, but respecting the rights of the guys who disagree and allowing someone to defend the position of those who made it.

We’ve yet to see exactly how this plays out with appeals. In the First Circuit, the appeals are already in process.

But if the Feds lose in the Second Circuit, will the DOJ appeal? Will the House have the right to do so? Shades of Perry v Schwarzenegger.

I’ll continue to criticize Boehner and the Republican House for the arguments presented to defend DOMA. And he could have agreed with the President that DOMA 3 is unconstitutional (though not without some nasty intraparty chaos).

But at the moment, he’s behaving better than expected. He never promised to be a fierce advocate and this whole “let the courts decide” language is certainly better than what I thought would be. (Surely, Ryan, you are not so partisan that you can’t praise a guy for being better than expected.)

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