Jim's Column

Defending DOMA

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Washington, April 28, 2011 | comments

In February, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in federal courts.

The Defense of Marriage Act, which defines marriage for federal purposes as solely between a man and a woman, was signed into law by President Clinton in 1996, after receiving strong bipartisan support from both houses of Congress. 
President Obama’s February announcement was delivered by Attorney General Eric Holder in a letter to Speaker John Boehner.  The letter notes that the Department of Justice (DOJ) will no longer defend DOMA in federal courts because the President believes that the statute violates "the equal protection component of the Fifth Amendment" of the U.S. Constitution.

The Obama Administration experienced a swift and overwhelming response to its controversial position on the statute.  Not only has the position sparked criticism of the President overstretching his executive powers to unilaterally deem a law unconstitutional, but his decision challenges the fundamental principles that have governed the sanctity of marriage in the United States since the early days of our Founding Fathers.  Additionally, more than 50 percent of the states in the U.S. have amended their state constitutions so that the legal definition of marriage is the union of one man and one woman.    
Speaker Boehner recently took the necessary measures to ensure that the House of Representatives will be able to effectively intervene and defend the law in federal court by hiring former Cedarburg native and former Solicitor General Paul Clement.

Clement, who was working for the law firm King & Spalding, which was handling the case, has since resigned from the firm due to its decision to drop the DOMA cases based on the controversy it had already spurred.  Clement appears unperturbed by those who consider his resignation a bold response to his firm caving to political pressure.   According to Clement, his actions reflect his adherence to the principle that lawyers should not withdraw from their clients based on the nature of an issue.

In an effort to protect taxpayers from the ensuing financial burden of defending DOMA, Speaker Boehner sent a letter to Democratic Leader Nancy Pelosi (D-CA) requesting that all DOMA-related funds be transferred from the DOJ to the House of Representatives.  As Speaker Boehner voiced in the letter, “DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA.” He continued, “By the President’s action through the Attorney General we have no choice; the House now faces that additional burden and cost.”

Our Constitution entrusts the Supreme Court with the power to ultimately decide the constitutionality of laws, including the Defense of Marriage Act—not the Executive Branch.  As a longstanding supporter and original cosponsor of DOMA, I stand firm behind Speaker Boehner and support his action to equip the House with the resources necessary to uphold the constitutionality of the statute in the courts.


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