House Speaker John Boehner (R-Ohio) said on Friday that he will begin the process for House intervention in litigation over the constitutionality of the federal Defense of Marriage Act.
Boehner said he intends to convene the Bipartisan Legal Advisory Group, which, under House rules, has the authority to instruct the Office of House General Counsel to take legal action on behalf of that chamber.
President Barack Obama last month announced that he had determined, after consultation with Attorney General Eric Holder, that the law, known as DOMA, would not pass constitutional muster under a heightened review standard. As a result, Holder said he would inform district courts in the U.S. Court of Appeals for the 2d Circuit as well as the U.S. Court of Appeals for the 1st Circuit that the department would no longer defend the law. He also said Congress should have the opportunity to defend the law.
There are two challenges pending in district courts in the 2d Circuit. The government has two appeals pending before the 1st Circuit.
“It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner said in a statement. “The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”
The Bipartisan Legal Advisory Group is a five-member panel consisting of the speaker of the House, majority leader, majority whip, minority leader and minority whip.
The National Organization for Marriage issued a statement praising Boehner’s announcement. “With the House intervening, we will finally get lawyers in that courtroom who are trying to win this case — and we are confident that in the end DOMA will be upheld by the Supreme Court,” said Brian Brown, president.