Congressional Republicans are sending lawyers to court to defend the ban on federal recognition of same-sex marriage, but they're not ignoring the court of public opinion.
A House Judiciary subcommittee held a hearing today on the Defense of Marriage Act, highlighting the Obama administration’s decision in February not to back the law in court. Republicans say the administration’s decision was politically motivated, and last month Speaker John Boehner (R-Ohio) and others in the House Republican leadership voted to intervene in the Justice Department’s place.
Today’s hearing was a forum for Republicans to air their criticisms of DOJ. “Marriage deserves to be defended, and today’s hearing is an important step in that defense,” said Rep. Trent Franks (R-Ariz.), who presided over the hearing.
Rep. Jerry Nadler (D-N.Y.), who has introduced legislation to repeal the law, responded that Republicans should abandon the litigation as too “time-consuming and costly.”
The committee heard from critics and a supporter of the 1996 law. Edward Whelan III, who served in DOJ’s office of legal counsel during the George W. Bush administration, accused the Obama administration of undermining the legal defense of the law even before it abandoned the law entirely. The department still had reasonable arguments to make in the law’s favor, he said.
“Any competent lawyer could present many arguments that DOMA shouldn’t be subjected to heightened scrutiny,” said Whelan, now president of the conservative Ethics and Public Policy Center.
Carlos Ball, a professor at Rutgers School of Law-Newark, defended the reasoning of President Barack Obama and Attorney General Eric Holder Jr. He noted that their February decision was prompted by a case heading to the U.S. Court of Appeals for the 2nd Circuit, which has not previously considered what the appropriate standard of review should be for the Defense of Marriage Act.
“It seems to me entirely appropriate for an administration to make its own determinations on these issues, especially when there is no binding precedent in the relevant circuit,” Ball said.
Click here for copies of the witnesses’ written testimony.
The Republican-led Judiciary Committee is planning to maintain public attention on the issue with another hearing scheduled for next month. Franks said that Justice Department officials are scheduled to appear in person for that hearing.