The warning shot came via Twitter yesterday.
Now, Politico is reporting that New York Senator Kirsten Gillibrand is pressing House Speaker John Boehner to give the tax payers a peace dividend, by not funding a DOMA Defense:
Sen. Kirsten Gillibrand (D-N.Y.) urged House Speaker John Boehner Wednesday not to waste money on appointing a special counsel to protect the Defense of Marriage Act in court now that the Justice Department won’t defend it.
“It is in the best interests of taxpayers and the constitution for you to refrain from appointing special counsel to defend this law,” wrote Gillibrand in a letter to Boehner obtained by POLITICO. “A decision to appoint special counsel would be an unnecessary cost to taxpayers, and would detract from our shared goal of cutting wasteful spending and creating jobs.”
She cites precedent of the Sedition Act, Metro Broadcasting, and John Roberts' past actions. It's a smart argument.
It's also smart politics. We see how the right finds no expense too picayune it can't be made a political issue as they attack pennies for teachers, arts, social safety net programs. Turnabout is very fair play.
But is it futile? Maybe, or maybe not. Yesterday, a major force of the Christian Right, in-house attorney for the anti-gay American Family Association conceded on their radio show yesterday that DOMA was
"probably unconstitutional."
When your own foot soldiers don't have your back, maybe it's time to throw in the towel.
The letter Senator Gillibrand forwarded to Speaker Boehner.
The Honorable John Boehner
Speaker of the House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker,
I am writing to bring to your attention a matter of profound importance regarding the posture the Administration has taken in the forthcoming cases, Windsor v. United States and Pedersen v. Office of Personnel Management. These cases, as you are aware, have been brought in federal courts in the Second Circuit, where there is no controlling case law regarding what standard of review should be applied to challenges to sexual orientation discrimination, including discrimination in federal benefits and privileges related to marriage. In a letter to you last week, the Attorney General advised that the Administration has concluded that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and therefore will cease to defend the statute in pending litigation. It is in the best interests of taxpayers and the constitution for you to refrain from appointing special counsel to defend this law. A decision to appoint special counsel would be an unnecessary cost to taxpayers, and would detract from our shared goal of cutting wasteful spending and creating jobs.
The executive branch’s responsibility to defend federal laws is not absolute, particularly in instances such as the present case, where the federal law is in direct conflict with the confines of the Constitution. At this critical economic juncture in our nation’s history, it is imperative that we as legislators do not devote resources to defending an antiquated and unconstitutional law.
“At this critical economic juncture in our nation’s history, it is imperative that we as legislators do not devote resources to defending an antiquated and unconstitutional law.”
Instead, we must focus our attention on creating jobs and increasing America’s competitiveness in an increasingly competitive global market. The appointment of special counsel and pursuit of this case is a drain on resources, time, and energy and is not in America’s economic and social interests.
As you are aware, Article IV of the United States Constitution requires the President to enforce federal law, including the Constitution. This authority requires that every law is to be carried out so far as it is consistent with the Constitution, and no further. There is ample, well documented evidence of the long history of the executive branch’s refusal to defend laws that it finds to be unconstitutional. This record includes instances such as Thomas Jefferson’s refusal to enforce the Sedition Act and more recently, when then-Deputy Solicitor General John Roberts refused to defend federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. Federal Communications Commission. Roberts, appearing on behalf of the United States as amicus curiae, and the Department of Justice not only did not defend the federal statutes, but also urged the Court to declare these statutes unconstitutional. They argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. Roberts further urged the court to reject the deference to Congress and to apply strict scrutiny to federal affirmative action programs. At that time, Congress did not appoint special counsel to defend this law in the White House’s stead, but instead deferred to the President’s constitutional authority. Congress should do the same in this case.
I urge you to consider this position as you prepare a formal response to the aforementioned cases. Thank you for your attention to this urgent matter. I look forward to hearing from you.
Seems Boehner has been making the rounds of the Christian Taliban, pledging his devotion.
The New York Times Caucus Blog reports:
Mr. Boehner first indicated his plans to intervene on behalf of the law that bans federal recognition of gay marriages in an interview over the weekend with the Christian Broadcasting Network.
“I really am disappointed in the president in his actions,” Mr. Boehner told the network. “But if the president won’t defend DOMA, then you’ll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly.”
“We’ve been researching all the options available to us,” Mr. Boehner said.
I'm glad to see Democrats stepping up to hoist the GOP on their own petard. While they happily fund trillions in wars no questions asked, they bulk at couch change for arts, education, social safety net programs.
This is a pet project of the right. In defending it, Boehner cites its popular passage in 1996, confirming the GOP lives in the past. If he'd check in with the world today, he'd see support for marriage equality is fast becoming a mainstream attitude.
But even the Christian Right seems to be breaking off. In headlines, I'd never thought I'd see, American Family Association's in-house lawyer said yesterday that DOMA was "probably unconstitutional."
Appearing on AFA's radio show, this unbelievable exchange occurred, from the Advocate:
Cohost Ed Vitagliano asked Vaughn whether former House speaker Newt Gingrich is right to say Obama's actions were an "impeachable offense." Vaughn replied, "I think that Newt Gingrich is an astute politician and he is playing this for all it's worth. I think that marriage is defined by God as between a man and a woman. However, the Defense of Marriage Act is probably unconstitutional, particularly ... if you attempt to apply it so that to say that a marriage conducted in one state is not in effect in another. That clearly violates the Constitution."
Now, for those not familiar with this group, American Family Association is among the 18 groups named recently by the Southern Poverty Law Center as an anti-gay hate group.
Bryan Fischer, American Family Association's director of analysis for government and policy, claimed in a blog post last May 27 that:
“[h]omosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine and 6 million dead Jews.”
Why would Hitler have so many gays in his legions? Well, of course it was because, Hitler was “an active homosexual” according to Fischer. He favored recruiting gays...
“because he could not get straight soldiers to be savage and brutal and vicious enough.”
Fischer also proposed criminalizing homosexual behavior in another 2010 blog post and has advocated forcing gays into “reparative” therapy. In a 2010 “action alert,” the AFA warned that if homosexuals are allowed to openly serve in the military,
“your son or daughter may be forced to share military showers and barracks with active and open homosexuals.”
Speaker Boehner? When anti-gay hate groups, who have such a long history of lying with reckless abandon aren't willing to give you cover, maybe it's time to defund the culture war.
Update: Equality Matters has an overview of the six effected DOMA lawsuits. Six. That's a lot of billable hours, huh?
JPMassar notes: "Gill and Massachusetts were merged into a single case, so the chart is a bit misleading." I included the link in case folks were curious to read more.
Updated by Clarknt67 at Wed Mar 2, 2011, 11:46:59 AM
Suggestion: If Boehner decides to fund this defense, one of the progressive groups, like Courage Campaign, or HRC should look into funding a "Taxpayer Tab" clock, keeping track of the billable hours spent on this endeavor.