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House begins DOMA defense

With former U.S. Solicitor General Paul D. Clement acting as its lawyer, the House of Representatives on Monday began its defense of the constitutionality of the 1996 law — the Defense of Marriage Act — that denies goverment benefits to same-sex couples who are legally married.  In a motion to intervene, along with a legal memorandum, the House’s Republican majority sought to enter a case in federal District Court in New York City, Windsor v. U.S. (docket 10-8435).

The move Monday is a result of the Obama Administration’s change of mind, in February, to give up its former defense of DOMA’s validity, and to begin arguing that the law is unconstitutional on the argument that it denies equal protection to legally married same-sex couples.  The Administration, as well as the civil liberties lawyers for the woman who filed the New York lawsuit, Edith Windsor, do not oppose the intervention by the  House, the District Court was told.

The House has hired Clement, now a lawyer in private practice in Washington, to pursue the legal defense in federal court.  The move was authorized by the Republican members of the House’s Bipartisan Legal Advisory Group.  The intervention is expected not only in the New York case, but also in a case involving a  similar challenge to DOMA, now pending in U.S. District Court in Connecticut (Pedersen, et al., v Office of Personnel Management, docket 10-1750).  The Connecticut court has been advised that the House will seek to enter that case by April 26.

Technically, the motion to intervene filed Monday is on behalf of the House, but it does not have the support of the Democratic leaders in the House; it thus is a project of the Republican majority.

In seeking to join in the New York case, Clement’s legal memorandum said that the House’s participation will be limited solely to the question of DOMA’s constitutionality.  He said that it is expected that the litigants will take sides on that issue by filing motions, without the House having to respond directly to the complaint other than to defend DOMA.

Recommended Citation: Lyle Denniston, House begins DOMA defense, SCOTUSblog (Apr. 18, 2011, 10:38 PM),