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Pelosi v. Boehner on DOMA

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With House Republican leaders stepping up to defend the Defense of Marriage Act in the wake of the Obama administra­tion’s conclusion that it is unconstitutional, Nancy Pelosi, the California Democrat who is now the minority leader, has written to Speaker John Boehner, an Ohio Republican, to object, citing the House general counsel’s intention to hire outside attorneys to assist due to lack of time and budget resources.

On February 23, Attorney General Eric Holder announced the Obama administration had concluded that DOMA’s denial of federal recognition to legal same-sex marriages should be subjected to a heightened level of judicial scrutiny, under which the law would be found to violate the equal protection rights of the couples involved. The Justice Department, Holder said, “will cease defense of Section 3,” the portion of DOMA barring federal recognition.

On March 4, Boehner responded to that decision, writing, “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. 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.”

Last week, the speaker took the matter to the Bipartisan Legal Advisory Group — made up of the top three GOP House members and the top two Democrats — which voted along party lines to move forward on defending the law.

Noting Boehner’s own acknowledgement that the courts will decide the issue, Pelosi, on March 11, argued that “the costly defense of a statute which many believe to be unconstitutional under the Equal Protection clause” would serve “no institutional purpose.”

“The American people want Congress to be working on the creation of jobs and ensuring the continued progress of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation,” Pelosi concluded.

The Human Rights Campaign also turned the tables on Boehner’s persistent charge that the administration has taken its eye off the ball regarding jobs in a written release titled “House Republican Leadership Violates Jobs Pledge by Taking Steps to Take up Defense of Discriminatory DOMA Law.” A release from the Log Cabin Republicans made the same point.

The 1st Circuit Court of Appeals is currently hearing an appeal filed last year by the Justice Department of victories by the state of Massachusetts and same-sex couples married there in lawsuits against the statute. The DOJ’s new position on the appropriate level of judicial scrutiny that should be applied to DOMA came in response to more recent legal challenges filed in New York and Hartford.

Updated 5:17 pm, July 20, 2018
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