WASHINGTON — The House of Representatives will continue to allow the House Bipartisan Legal Advisory Group to defend the constitutionality of the Defense of Marriage Act in the 113th Congress, according to rules adopted by the House Thursday on a 228-196 vote.
The vote approving the new rules, done as one of the first actions of the new Congress, is the first time that the entire House has acted to approve the House's defense of DOMA and comes as the Supreme Court is considering one of the challenges to the law. One Republican voted against the rules.
The only prior vote on the matter was the March 2011 vote by the members of the Bipartisan Legal Advisory Group to authorize the defense: Speaker John Boehner, Majority Leader Eric Cantor, Majority Whip Kevin McCarthy, Minority Leader Nancy Pelosi and Minority Whip Steny Hoyer. Boehner, Cantor and McCarthy voted yes; Pelosi and Hoyer voted no. That move came in the month after President Obama and Attorney General Eric Holder concluded that DOMA is unconstitutional and, accordingly, announced they would no longer be defending section three of the law, which limits federal recognition of marriages to only those between one man and one woman.
The new rules specifically authorize the defense of DOMA in that case, Windsor v. United States, but defense in other litigation "that involve[s] a challenge to the constitutionality of section 3 of the Defense of Marriage Act or related [laws]" also is authorized.
In addition to authorizing the Bipartisan Legal Advisory Group to continue defending DOMA, the rules state that "the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States."
Pelosi, who has strongly opposed the defense and told this reporter she would not continue it if she had retaken the speakership, criticized the move.
"Today, House Republicans will send a clear message to LGBT families: their fiscal responsibility mantra does not extend to their efforts to stand firmly on the wrong side of the future. Republicans will take the extraordinary measure of including an authorization of their efforts to defend DOMA in the Rules of the House of Representatives and by doing so, continue to spend taxpayer funds, already adding up to $1.7 million, in their attempts to defend this shameful law in federal courts and the Supreme Court," Pelosi said in a statement.
Reps. Jerrold Nadler of New York, John Conyers of Michigan, Jared Polis of Colorado, David Cicilline of Rhode Island, Sean Patrick Maloney of New York, Mark Pocan of Wisconsin and Mark Takano of California, all members of the LGBT Equality Caucus, said in a statement that "all Members should object to the use of taxpayer dollars to pay costly legal fees to make arguments that lack adequate factual or legal support, in pursuit of a law that is not worthy of a defense."
Boehner spokesman Michael Steel, however, downplayed the significance of the action, putting the blame on the Obama administration for its decision not to defend the law.
"We continue to believe the constitutionality of the law should be judged by the court, not the president unilaterally — and will provide the resources needed to protect our system of checks and balances," Steel told BuzzFeed.
Pelosi also took note of the "speak for" language, which likely will be used by BLAG in its arguments before the Supreme Court that it has standing to be a party to the DOMA litigation, a question before the court in the Windsor case.
"Additionally, for the first time in the House Rules, the Republican leadership has decided to include an explicit acknowledgement that the Bipartisan Legal Advisory Group (BLAG) ‘continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears….' As House Democrats have time and time again made clear, the BLAG does not speak for all Members of the House of Representatives and we will continue to oppose this wasteful use of taxpayer funds to defend DOMA," she said.
LGBT advocacy groups also decried the move, with the Human Rights Campaign's legislative director, Allison Herwitt, telling BuzzFeed, "In their very first act of the 113th Congress, House Republican leaders have written their commitment to their multi-million-dollar defense of the discriminatory Defense of Marriage Act into the Rules of the House. It is particularly disappointing that this historic Congress – with the largest-ever class of openly lesbian, gay and bisexual Members and same-sex congressional spouses – has begun with a vote that disrespects those new Members and all LGBT Americans."
Freedom to Marry's national campaign director, Marc Solomon, concurred, saying, "It's truly disheartening that, on a day of new beginnings on Capitol Hill, the leadership of the House of Representatives is advancing a measure, through its rules, to continue spending taxpayer dollars on expensive lawyers to defend the so-called Defense of Marriage Act in court."