Last night, House Speaker John Boehner (R-OH) falsely accused the Obama administration of failing to enforce the 1996 Defense of Marriage Act and announced that the House would act to uphold the Act in court. Appearing on Fox News’ On The Record, Boehner promised to lay out a specific strategy “in the next couple of days” but pledged, “we are going to intervene”:
BOEHNER: DOMA is the law of the land. It passed overwhelming in both the House and the Senate. And I think it’s outrageous for the president to say, Well, we’re not going to enforce it. It’s the law of the land. It’s the job of the Justice Department to defend the work of our government. And I just think it’s outrageous. We’re looking at our options, what’s available to us to intervene. The short — the long and short of this is that we are going to intervene. The question is how do we do it.
VAN SUSTEREN: Have you had any conversations with the executive branch, with the attorney general or the president about that?
VAN SUSTEREN: So everyone’s going to find out when, later this week, what…
BOEHNER: I’m hopeful we’ll have an answer here in the next couple of days.
Despite Boehner’s assertion, the Obama administration is still enforcing DOMA, even if it is no longer defending it. As Attorney General Eric Holder explained in a letter to Congressional leaders, “the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” The DOJ is complying with the law In the Ninth Circuit, where the administration is still opposing a federal employee’s “bid to obtain health insurance for her same-sex spouse.” In a filing on Monday, for instance, “DOJ attorneys reiterated that Obama told executive agencies to enforce the law until Congress repealed it — even though the administration would no longer defend its constitutionality in court.”
Yesterday, the Human Rights Campaign issued a release suggesting that increasing public support for gay unions could complicate the GOP’s efforts. In fact, as part of the suit Republicans would likely have to make some dubious arguments, including: “that gays and lesbians have not faced a history of discrimination, that one’s sexual orientation is in fact relevant to a person’s ability to contribute to society, that, contrary to the opinion of experts, sexual orientation is something that can be changed, that gays and lesbians are politically powerless and that the federal government is justified in violating the federalist tradition of leaving marriage and family law to the states.”
In July, a Federal District Court in Boston rejected these arguments and ruled that Section 3 of DOMA is unconstitutional because it interferes with the traditional state right to define marriage and forces the state to “violate the equal protection rights of its citizens.”