CQ TODAY ONLINE NEWS
Corrected March 22, 2012 – 6:06 p.m.
Groups to Boehner: Get Tough on Gay Marriage
By Richard E. Cohen, CQ Staff
Conservative groups are criticizing House Speaker
The Family Research Council complains that Boehner, R-Ohio, has not sufficiently rallied the House’s legislative and political powers to challenge the administration’s finding in February 2011 that the law is unconstitutional, a determination that led the Justice Department to stop defending the statute in court.
Other groups are also critical of what they consider an anemic response by House Republicans to the administration’s move.
Boehner decided to pursue the issue in the courts rather than turning it into a political debate. The Speaker sought and won approval last March from a GOP-controlled leadership group to direct the House counsel to intervene and defend the Defense of Marriage Act (DOMA) in upcoming federal court challenges.
House appropriators sought to reduce fiscal 2012 funding for the solicitor general’s office to offset the cost of hiring former Solicitor General Paul D. Clement, a prominent Supreme Court litigator, to defend the constitutionality of the 1996 law banning federal recognition of same sex marriage (PL 104-199), but the attorney fees have been paid from legislative branch funds.
While the Family Research Council and other conservative groups applaud Boehner’s unusual courtroom intervention, the council would like to hear more vocal support of the measure signed into law by President Bill Clinton.
“They hired Paul Clement, and they think their job is done. While the Obama administration ignores DOMA, Speaker Boehner has forgotten that the checks and balances also include Congress,” said Tom McClusky, senior vice president of the Family Research Council.
The council sees a challenge of the law’s definition of marriage as “a legal union between one man and one woman” as a threat to religious freedom — a potent political argument Republicans used to criticize the Obama administration’s recent requirement that health insurers, including those of religiously affiliated organizations, provide contraceptive coverage.
“I wish that our allies would do more. They are being intimidated into silence by Republican leaders,” McClusky said.
Barrett Duke, vice president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, voiced broader disappointment that the House GOP has not backed a proposed constitutional amendment that would declare that marriage should be between a man and a woman.
“The leadership feels that they don’t have the votes,” Duke said. “We would like to see more discussion in Congress so that the country could understand the issue and hold members accountable. . . . We will continue to work at the grass roots.”
Conservative groups are increasingly stepping up pressure on Boehner and his majority to advocate their causes.
Fiscal conservative groups including the Club for Growth are pushing Republicans to draft a fiscal 2013 budget resolution that seeks deeper spending cuts than even some House conservatives support, and other groups have pressed for a more sweeping overhaul of surface transportation programs than House Republicans have proposed.
Groups to Boehner: Get Tough on Gay Marriage
First Appeals Court Case
The marriage issue is heating up before oral arguments slated for April 4 before the 1st U.S. Circuit Court of Appeals to review a district court ruling in Massachusetts that the so-called same-sex marriage law is unconstitutional.
Of the several challenges to the law now working through the federal courts, the case is the first to advance to an appeals court and could become the basis for a widely expected Supreme Court review of the law’s constitutionality.
A judge in the Northern District of California also ruled last month that the law violates the Constitution’s “equal protection” clause.
Boehner’s legal action, which is intended to uphold the law, could actually benefit those seeking to have it declared unconstitutional, according to advocates of same-sex marriage.
Brian Moulton, legal director of the Human Rights Campaign, which is fighting to have the law thrown out, said Boehner’s decision to have the House join the litigation gives legitimacy to a legal challenge that the federal appellate courts might not have seriously considered.
Carisa Cunningham, director of public affairs for the Boston-based Gay & Lesbian Advocates & Defenders law firm, said Boehner’s intervention could backfire. “He has elevated attention by bringing in Congress,” she said.
A Winning Political Issue?
Boehner’s courtroom strategy was framed in response to many GOP lawmakers who privately urged him to avoid embroiling the House in a divisive social issue, particularly when any legislative action had no chance of advancing in the Senate, aides said.
The Speaker lamented the White House finding in a written statement at the time and said his decision to defend the law in the federal courts “will ensure the matter is addressed in a manner consistent with our Constitution.”
Since then, Boehner and other House leaders have largely avoided public comments on the topic. House debate has been all but absent, and Republicans who have sought to press the issue legislatively have run into roadblocks.
Last year, conservative lawmakers raised the possibility of a House vote on the merits of the constitutional issue, said a GOP aide familiar with the discussions. But party leaders said they preferred to pursue the legal option, the aide added.
“There was discussion of a reaffirmation of DOMA,” said Brian Brown, president of the National Organization for Marriage. “But that wouldn’t do anything legally. DOMA is already the law.”
Groups to Boehner: Get Tough on Gay Marriage
Conservative Reps.
“There is a debate in the Republican conference on whether defense of marriage is a winning issue politically,” said an aide to a committee Republican. The issue may be raised again this spring when the House considers the fiscal 2013 defense authorization bill, the aide said.
The leadership’s approach reflects, in part, what gay-rights advocates contend is increasing public and legal backing for their cause. Public opinion polls show that a slim majority of respondents support same-sex marriage. In recent months, New York and Maryland — with some Republican support — have become the seventh and eighth states, respectively, to enact laws recognizing same-sex marriages.
“Republicans are cognizant of where the public is moving,” said Moulton, the Human Rights Campaign’s legal director. “The Speaker’s defense of the law helps us show the harms that the law has caused. . . . At the end of the day, his action perpetuates the harms.”
An activist who handles same-sex marriage issues for Third Way, a centrist-leaning Democratic policy group, said Boehner was “smart” in not pressing hard on the issue in Congress.
“He doesn’t want to go too far in alienating voters,” said Lanae Erickson, the group’s deputy director of social policy and politics.
First posted March 16, 2012 10:48 p.m.
Correction
Clarifies the source of funding to cover the cost of hiring former Solicitor General Paul D. Clement.