On Defending DOMA, Boehner Hits a Home Run, Or Two

On Defending DOMA, Boehner Hits a Home Run, Or Two

By Maggie Gallagher - April 21, 2011

This week, House Speaker John Boehner came out swinging with two announcements: Former Solicitor General Paul Clement would represent the House in its effort to defend the federal Defense of Marriage Act, and the Justice Department should pay for it.

Two swings, two home runs.

The Defense of Marriage Act does two things: It defines marriage for the purpose of federal law as the union of one man and one woman, and it clarifies that states do not have to recognize any other form of marriage if they do not want to. Texas does not have to recognize Massachussetts' gay marriages, or Iran's polygamous marriages, either.

President Obama, after years of sabotaging DOMA's defense in court, recently announced he would stop even pretending to defend marriage in court. So the House stepped in to defend DOMA, and this week announced Paul Clement is in charge of that defense.


Paul Clement is one of the ablest litigators in the country, whose seven years acting as solicitor general is the longest period of continuous service since the 19th century. The solicitor general's job is arguing cases before the U.S. Supreme Court, and Clement has argued more than 50 such cases.

As a friend of mine, himself an able litigator, put it: "He's the best. Boehner could not have made a better choice."

And so, thanks to Boehner, Obama's plan to sabotage DOMA's defense has backfired.

For the first time since Obama became president, we will have a legal eagle in the courtroom defending DOMA who actually wants to win the case.

Boehner's second home run came in a letter to Nancy Pelosi demanding that the funds for defending DOMA be subtracted from the Department of Justice's budget (an idea first proposed by Rep. Steve King, R-Iowa).

Boehner's pointed request to Pelosi is eminently reasonable: "The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House. Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA."

On Friday, I testified before a subcommittee of the House Judiciary Committee, along with legal scholar Ed Whelan.

At the hearings, the chairman, Trent Franks, R-Ariz., astutely pointed out:

"The president's decision was a baldly opportunistic attempt to free himself from a political dilemma. The administration had a duty to defend DOMA, but powerful constituencies of the president did not want the president to defend it. Politics trumped duty."

Franks went on: "Never has a president refused to defend a law of such public importance -- on a legal theory so far beyond any court precedent -- for such transparently political reasons."

He's right. The Department of Justice had submitted a legal brief defending DOMA -- and then retracted that brief when the president's political base objected, publicly promising they would make no arguments that offended that constituency.

At the hearing, various Democrats asked me what the gay press calls tough questions, such as, "Did you spend $650,000 to unseat three Iowa judges?" Yes, I said, the National Organization for Marriage is a political advocacy group, and engaging in political activism is appropriate for us in a way that it is not appropriate to politicize the Department of Justice.

They looked at me blankly.

Here's the bottom line: Noted libertarian legal scholar professor Richard Epstein (who favors gay marriage and opposes DOMA as policy), last year pointed to what Obama's so-called Justice Department was doing in these cases, writing: "It looks almost like collusive litigation, unless some true defender of DOMA is allowed, as an intervener, to defend the statute on the merits."

Thanks to Speaker Boehner, and the GOP leadership, a true defender of marriage has stepped forward, and our chance for victory at the Supreme Court just shot way up.

Copyright 2011, Maggie Gallagher

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