National Geographic

Remember Nancy Pelosi's letter to John Boehner in which she demanded to know how he was going to pay for the GOP's defense of DOMA? Here's how:

House Speaker John Boehner said he intends to divert funding from the Justice Department to the U.S. House so Congress can defend the federal law that bars recognition of same-sex marriage. The Ohio Republican disclosed this in a letter to House Minority Leader Nancy Pelosi, D-Calif., who is strongly opposed to Congress going to court to defend the 1996 law. An estimate on court costs was not given. [snip] Boehner asked the Bipartisan Legal Advisory Group -- consisting of the top leaders of Congress -- to defend the law in court. The GOP members of the group sided with Boehner. "By the president's action through the attorney general we have no choice," Boehner's letter says. "The House now faces that additional burden and cost." Boehner said he has directed the House's counsel and the House Administration Committee to ensure that there are "sufficient resources" and expertise, including an outside lawyer if necessary, to defend the law.

According to the Human Rights Campaign, Boehner has retained former Dubya Solicitor General Paul Clement to defend the cases now in the courts. Clement is now with the private firm King & Spaulding. Via HRC's press release:

“Not only are House Republican leaders defending the indefensible, they’ve brought in a high priced attorney to deny federal recognition to loving, married couples,” said HRC President Joe Solmonese. “Speaker Boehner appears ready to go to great lengths, and the great expense of a high-power law firm, to try to score some cheap political points on the backs of same-sex couples. King & Spaulding were not required to take up this defense and should be ashamed of associating themselves with an effort to deny rights to their fellow citizens.”

There are presently nine DOMA Section Three-related cases pending.

UPDATE: A tipster points out that King & Spaulding has a 95% rating from the Human Rights Campaign, something the law firm trumpets on its own website.

King & Spalding is committed to having the brightest and most diverse lawyers it can find, including members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community. We work hard to foster and maintain an environment where our lawyers can provide the highest level of legal service while being true to themselves in the process. The firm's non-discrimination policy prohibits discrimination based on sexual orientation and gender identity. Further, domestic partner benefits are offered for same-sex couples.

Does that sound like a company that really wants to get involved in the GOP's anti-gay bigotry?

Or so it would seem from their bizarre image accompanying this message:

So, just like any other despot, Obama decided unilaterally to make the decision for all of us ignorant Americans who support DOMA, and we should be grateful. Shame on him. And shame on us if we just stand by silently and take it. We should not! We must speak out. Truthfully, we have been too silent for far too long. President Obama and Mr. Holder have been actively working against DOMA and, therefore, against all Americans ever since they took office. Even on the cases where they decided to “defend” DOMA, they were actually undermining its reasoning by abandoning the most effective arguments.

DOJ’s mission statement says it is “...to ensure fair and impartial administration of justice for all Americans.” But President Obama and the attorney general have made a mockery of impartiality. They have chosen to side with an extreme, liberal minority and chose to suppress the rights of the majority of Americans. Simply put, if you support DOMA, this president and his administration view you as the enemy who does not deserve the same protections other Americans enjoy. We are on our own.

Virulent homophobe Rep. Steve King (R-IA) says he will introduce a budget amendment that will cut the Department of Justice's funding by the amount it would have spent to defend DOMA.

"What I intend to do, and there are other solutions that are offered, and I believe that the Speaker is focused on this, as well ... is to offer an amendment on an appropriations bill that would cut the funding to the Department of Justice in an amount yet to be determined that would be equivalent to that amount that they would otherwise use to defend the Defense of Marriage Act," King said Tuesday.

Completely ridiculous grandstanding, of course.

Via press release from GLAD:

The Department of Justice followed Wednesday’s withdrawal from two DOMA cases in the Second Circuit, including GLAD’s Pedersen v. OPM by notifying the clerk of the First Circuit that they will also “cease to defend” the two consolidated DOMA cases, Gill v. Office of Personnel Management and Massachusetts v. HHS. The DOJ has not sent a letter to the Congress declining to defend DOMA in toto in the Gill case, so its determination may only apply to the extent the court determines that heightened scrutiny is the proper standard of review for DOMA’s constitutionality. No matter what happens, the case will proceed with DOJ as the attorneys for the government defendants.

“It is increasingly clear to everyone what has been clear to gay and lesbian families for years - that DOMA’s denial of protections available to all other married families is discriminatory, harmful, and unjustifiable,” said Mary L. Bonauto, GLAD’s Civil Rights Project Director and lead attorney on both Gill and Pedersen. “DOJ’s acknowledgement of this is momentous. At the same time, we know this isn’t the end of the road.” In a letter to the court Assistant Attorney General Tony West writes that “the Department will cease its defense of Section 3” in cases including Gill and Massachusetts. DOJ also “notifies the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation of those cases,” and that “we will remain parties to the case and continue to represent the interests of the United State throughout the litigation.”

Anti-gay legal groups from the Alliance Defense Fund to the Heritage Foundation are saying that the president's decision yesterday clears the way for them to mount a "truly rigorous" defense of DOMA.

Chuck Donovan, senior research fellow at The Heritage Foundation, says the government's decision to abandon the federal law is outrageous because it is now understood that the administration's defense of DOMA in court has only been a pretense. "The silver lining, though, is that now, we're going to get away from this farce of a representation we've had out of the Obama Justice Department," Donovan suggests. That means "we'll have a clear attempt...by others in Congress to interject the congressional view and defend marriage." The Department of Justice has already told one federal court that DOMA is unconstitutional, while maintaining in another case that the government could make a defense, even though the agency believes the law is unconstitutional. "It's embarrassing for the administration to have it play out this way," the research fellow decides. "It looks very political. But actually, there's a chance that DOMA will now get a much better defense."

An ADF attorney says, "The Department of Justice has a constitutional duty to defend the laws duly enacted by Congress. And the refusal of the attorney general to defend the federal Defense of Marriage Act just because they don't like it politically is really inexcusable."

According to openly gay Salon reporter Glenn Greenwald, the president deserves "enthusiastic unqualified praise" for yesterday's DOMA move. "This is a case where there's a fair amount of political risk, very little political benefit."

"Never in the history of this great nation has a President so openly defied his duty to uphold and defend the law of the United States . Now, this White House is declaring war--not only on marriage--but on Congress, whose authority this President now rejects. If this congressional leadership does not intervene with the force this attack demands, then they will become complicit in behavior that is more befitting of a Middle East regime.

"To our friends who want nothing more than to leave these issues behind, this is what a social truce would look like. Republicans need to see this challenge for what it is: the White House, throwing down the gauntlet on marriage and declaring them irrelevant. That same piece of yellowed parchment that empowers this President is the one that demands, 'He shall take care that the laws be faithfully enforced.' And where he fails, Congress must not" - Family Research Council spokesbigot Tony Perkins, via press release.

Socarides, who is now with the Media Matters affiliate Equality Matters, says that today's move "will definitely help Obama with gay groups." Understatement.

In a stunning announcement, today Attorney General Eric Holder declared that the federal government will no longer defend Section 3 of DOMA in court.

Here is an excerpt from Holder's statement.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

Read Holder's statement in full. Analysis and reactions to come!

From the New York Times editorial board.

The 1996 Defense of Marriage Act is indefensible — officially sanctioned discrimination against one group of Americans imposed during an election year. President Obama seems to know that, or at least he has called on Congress to repeal it. So why do his government’s lawyers continue to defend the act in court? [snip] There are two crucial questions here. The overarching one, of course, is whether it is constitutional for the federal government to deny benefits to some people who are legally married under their state’s laws. Much also depends on the standard of review. How should courts evaluate claims that a law discriminates against gay people?

On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry. By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so.

Read the entire editorial.

CNN is reporting today that the FCC has approved the merger between cable giant Comcast and NBC-Universal. CNET explains:

The $37 billion merger between the companies has been a long time coming. The deal, which was first announced in 2009, provides Comcast with a 51 percent controlling stake in NBC Universal. General Electric will retain the remaining 49 percent. When the deal was first announced, the companies hoped to have it accepted by regulatory bodies at the end of 2010. However, over the course of the last year, the companies faced increasing concerns that their merger might unfairly impact competing content providers and harm consumers. The Department of Justice, which is also evaluating the merger with regard to antitrust rules, is also expected to vote to approve the joint venture. Both the Justice Department and that FCC stamps of approval are needed before the deal to form the joint venture can close.

The merger has been a subject of relentless lampooning on NBC's 30 Rock, where the acquiring company is called Kabletown.

"Apparently, the administration is so fixated on making the homosexual community happy that it's not even working to uphold what's best for kids. In this instance, the Justice Department seems to imply that by doing their job they're somehow doing America a favor. Hardly! Defending the law is DOJ's whole reason for existence. So while the President may have strong feelings on the matter, they by no means excuse him or his administration from doing its duty. Since the President is failing to live up to the responsibilities his elected office holds, it is within Congress' explicit right to intervene to defend the laws they have passed. This current appeal is already shoddy substitute for the compelling argument that the statute--and American families--deserve." - Family Research Council president Tony Perkins, via press release.

"The DOJ brief amounts to collusive litigation, failing to even offer to the court, much less vigorously defend, the reasons Congress laid out in the statute when it passed DOMA, especially responsible procreation. This is an attack not only on marriage, but on the prerogatives of Congress. The Executive branch should not attempt to exercise this kind of retroactive line-item veto over a bill passed by Congress.

"All the parties to this litigation want the court to strike down DOMA; this is clear from their behavior, no matter what President Obama and his politicized DOJ pretend to convey to the public. If Obama’s DOJ had merely honestly refused to defend the law, the court would likely have permitted another party to intervene to defend the law. Obama’s DOJ is trying to retain control so it can lose this case." - NOM president Brian Brown.

The Department of Justice yesterday filed its defense of the overturn of Section Three of the Defense of Marriage Act, which was ruled unconstitutional last July in Gill v. Office of Personnel Management and Massachusetts v. United States.

A quote from the government's brief comes via Chris Geidner at Metro Weekly:

DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states. When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society.

Rather tepid, eh? Richard Socarides of the newly-formed Equality Matters responds.

"There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens. And that is unacceptable. The administration claims that it has a duty to defend the laws that are on the books. We simply do not agree. At the very least, the Justice Department can and should acknowledge that the law is unconstitutional."

And from GLAD, who won the case, we get this response via press release.

The government’s appeal follows a decision issued on July 8, 2010 by federal District Court Judge Joseph L. Tauro in favor of GLAD’s plaintiffs, seven married couples and three widowers, who have been denied access to federal programs because of DOMA. In that decision, Judge Tauro concluded that DOMA is unconstitutional. “We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court,” said Mary L. Bonauto, who is leading the DOMA team for GLAD. “We’re prepared to meet these arguments head-on, and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs and that DOJ has admitted is caused by DOMA.”