You are here: Home » Featured » As Boehner Seeks External Help On DOMA Defense, FRC Continues To Push For Congressional Intervention In Case

As Boehner Seeks External Help On DOMA Defense, FRC Continues To Push For Congressional Intervention In Case

03/23/11-by Bridgette P. LaVictoire
House Speaker John Boehner wants to defend the Defense of Marriage Act in court despite the fact that the Justice Department is pretty certain that they will lose the cases that are in progress right now. Speaker Boehner is joined in his adamant push to defend DOMA by the Family Research Council, an anti-LGBT hate group, who are desperately seeking people to tell Congress to pander to the Religious Right and defend a law that is, even to the legal layman, unconstitutional. Indeed, they wrote today:

As you likely know by now, President Obama has recently ordered his attorney general to unilaterally declare the Defense of Marriage Act (DOMA) unconstitutional. This was a direct challenge to the courts as well as Congress, implying both are irrelevant in making and enforcing laws in this country.

We now see a pattern as to how Democrats are responding to election losses: they simply do an end-run around democracy. Can’t block a union bill in Wisconsin or Indiana? Flee the state. Can’t repeal DOMA? Simply walk away and declare victory by undermining the institution of marriage and the democratic process.

Never mind the fact that even Wisconsin Senate Majority Leader admits that the union busting is not about jobs or saving the government money, but destroying the Democratic Party. Never mind that it does not take a legal scholar to see that large sections of DOMA are unconstitutional. Of course, never mind the facts- period.

Still, they went on:

Yet America is a nation governed under the law, and we will not stand for a government which flees from it. Remember, DOMA was passed by large bipartisan majorities, and defines marriage as the union of a man and woman for FEDERAL purposes, while also preventing one state from foisting same-sex “marriage” on another.

Ah, yes, a large bipartisan majority- back in, what, 1995? Fifteen years later, the battle lines have shifted and the majority of Americans support same-sex marriage and civil unions. Given that DOMA blocks recognition of either, this is now against the will of the American people who do not side with the Republicans nor the FRC on this matter.

Oh yes, but the Republicans are adamant that they need to pander to the hate groups:

Congress is fighting back. The House Republican Leadership has decided that if the Obama Administration won’t stand up for our nation’s laws, then they will — and have taken steps to allow Congressional representation to defend DOMA in the courts.

To bolster that decision, Representative Vicki Hartzler (R-Mo.) has introduced House Con. Resolution 25, expressing the sense of Congress with respect to the Obama Administration’s abdication of defending the Defense of Marriage Act.

Already it has garnered a number of cosponsors but we need your support in letting Members of Congress know that they need to step up where the Obama Administration has failed to defend marriage from activist courts.

It is amazing how, if the courts side with the FRC and the like, they are not activists even if they, oh, violate the law to do so, but if they side with the LAW- well, they’re activists.

Still, it appears that Boehner’s lawyers may not actually be up to the task of defending DOMA, and may have to seek out very expensive external lawyers in order to defend the unconstitutional. To this end, the HRC has sent out a letter to one of these firms in order to try and head off them joining the defense. They wrote:

March 23, 2011
Dear Managing Partner,

Late last month, Attorney General Eric Holder announced that, together with the President, he had
concluded that the Department of Justice could no longer defend the Defense of Marriage Act (DOMA),
the discriminatory law that denies federal rights and benefits to lawfully-married same-sex couples,
against constitutional challenges. As federal law requires, Holder notified the leaders of the Senate and
the House of Representatives of that decision, giving them the opportunity to step in and defend the law.
Unfortunately, House Republicans have decided to do just that and have indicated that they are seeking
outside counsel to represent them. On behalf of the Human Rights Campaign (HRC), I write today to
urge your firm, if it is even considering taking that case, not to do so.

Many of America’s top law firms are exemplary workplaces for lesbian, gay, bisexual and transgender
(LGBT) people; in fact, the legal sector has the largest number of top-scoring companies in HRC’s
Corporate Equality Index. In addition to setting benchmark equal employment and benefits policies,
many firms take on invaluable pro bono work in support of LGBT equality – from helping individuals
with name change and asylum issues, to providing expertise in high-profile cases about the freedom to
marry. HRC and the LGBT community as a whole are enormously grateful for the leadership and
generosity of many leading law firms.

It is critical that your organization not undermine that laudable record by representing the House in its
defense of this discriminatory and unconstitutional law, which denies loving gay and lesbian couples the
fair and equal treatment that they deserve from their federal government. LGBT people are your
colleagues, clients, neighbors, friends and families. Arguing for the constitutionality of DOMA will
mean denying the history of widespread discrimination that they have faced and claiming that the denial
of equality under the law is somehow in our nation’s interests.

We acknowledge and honor your ethical obligations as attorneys. We of course believe that every client
deserves representation, even those with whom we vehemently disagree. But you are not required to take
on the House as a client in its defense of DOMA, and we urge you not to. The House General Counsel
can and will represent the House Republican leadership in court, at taxpayer expense, and will likely find
assistance from some willing outside source. There is no need for your firm to take on the defense of a
law that a majority of Americans oppose and history will view as a shameful and discriminatory act.

Thank you,
Joe Solmonese
President

It should be noted that a lawyer who takes up the defense of a client’s position is obligated to defend that position, but that does not mean that they support that position. Author John Mortimer’s character of Horace Rumpole told clients that he had to believe that they were innocent in order to defend them even if they were, in fact, guilty. If they admitted to him that they were guilty, then he would drop their case because he could not defend them. One of the lawyers who argued for the side of segregation in Brown v. Board of Education was a firm believer in desegregation.

Hopefully, however, the law firm in question will not take the case.