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Republicans Mount Defense Of Anti-Gay Marriage Law

Nowlin Haltom (left) and Michael McKeon join other same-sex couples in a national "Request Marriage" action this Valentine's Day outside the Los Angeles County Clerk's Office. The couples requested and were refused marriage licenses.
Robyn Beck
AFP/Getty Images
Nowlin Haltom (left) and Michael McKeon join other same-sex couples in a national "Request Marriage" action this Valentine's Day outside the Los Angeles County Clerk's Office. The couples requested and were refused marriage licenses.

On Monday, House Republicans are scheduled to weigh in with a federal court in New York on the side of a law called the Defense of Marriage Act.

Big majorities in Congress passed the law 15 years ago to define marriage as being between a man and a woman. Usually, it's the Justice Department that speaks up when federal laws are challenged in court. But in this case, the Obama administration has declined to defend a law it considers unconstitutional.

The decision generated controversy among conservatives and even within the Justice Department.

House Speaker John Boehner (R-OH) told reporters at a news conference this month that President Obama's turnaround on the anti-gay marriage law left Republicans with few options.

"I don't think the House had any choice but to take the position that we were going to defend the work of the Congress. And only the courts are in the position of determining the constitutionality of any bill," Boehner said.

One GOP source told NPR that Boehner has enlisted a big-name Republican lawyer to argue for the constitutionality of the Defense of Marriage Act, or DOMA.

'Politics Trumped Duty'

For the past two years, the Obama Justice Department filled that role, backing the law in courts across the country. But in February, Obama instructed the Justice Department to back off.

The change in course has conservatives like Arizona Republican Rep. Trent Franks hopping mad.

"Far from cautious and deferential, the president's decision was a badly opportunistic attempt to free himself from a political dilemma," Franks said at a House Judiciary Committee hearing Friday.

Franks suggested that the White House walked away to please supporters in the gay rights community, who include some of his largest donors.

"The president and the administration had a duty to defend the Defense of Marriage Act, but powerful constituencies of the president did not want the president to defend it. And unfortunately, politics trumped duty," Franks added.

Franks is so angry that he has floated the idea of slashing funds for the Justice Department over the gay marriage decision.

But New York Democratic Rep. Jerrold Nadler, a longtime supporter of gay rights, said Republicans are on the wrong side of history.

"Rather than defending DOMA in court, Congress should be working to repeal it," he said. "There is no redeeming moral value to a law whose sole goal and sole effect ... is to persecute a group of people for no reason and no benefit to anyone else."

The Story Of Edie And Thea

Advocates for gay and lesbian people had been lobbying against DOMA for years. One of their prime examples was the case of Edie Windsor, who spent more than 40 years with her female partner, Thea Spyer.

They got married in 2007, but the federal government didn't recognize the marriage. And when Spyer died, Windsor got an estate tax bill of more than $360,000 on the money Spyer had left her.

Carlos Ball, a professor at Rutgers School of Law in Newark, N.J., told Congress that's not fair.

"There is no rational reason to impose a huge tax obligation on Edie that is not imposed on other New York widows," Ball said. "And that is just one example of why DOMA is unconstitutional."

James Esseks, a lawyer at the American Civil Liberties Union who represents Windsor, said the Justice Department decision is "groundbreaking."

A Break With Tradition

Until this year, the White House and many lawyers at the Justice Department said they didn't like the Defense of Marriage Act; but they defended it anyway.

That was longstanding tradition. Each new administration generally felt obligated to defend whatever laws it found on the books.

The question about whether to change course provoked debate at the highest levels of the Justice Department, and memos flew among offices all over the department's headquarters. Two Democratic sources told NPR that some officials, including Acting Solicitor General Neal Katyal, expressed serious reservations about abandoning the defense.

Here again, the solicitor general usually defers to Congress and defends all of its laws if there's any reasonable argument to make. But those with qualms were eventually overruled by the attorney general — and the president.

"The Obama administration's decision to abandon its defense of DOMA, or more precisely, to abandon its charade of pretending to defend DOMA, departs sharply from the Department of Justice's longstanding practice," said Ed Whelan, who worked in the Bush Justice Department.

Senate Republicans are so fired up about the Obama turnaround that they're taking it out on the man the administration has chosen to replace Katyal as the solicitor general.

Donald Verrilli has been peppered with dozens of questions about his independence and his respect for Congress, even though he didn't have any role in the decision to walk away from the gay marriage law.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Carrie Johnson is a justice correspondent for the Washington Desk.