WASHINGTON — Just one day after House Majority Leader Eric Cantor (R-Va.) announced that House Republicans would take action to defend the Defense of Marriage Act, Sen. Kirsten Gillibrand (D-N.Y.) is urging GOP leadership not to waste taxpayer resources to defend the unconstitutional law.
“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,” Gillibrand wrote.
On Feb. 23, the Obama administration announced that at least one part of DOMA — Section 3 — will not be able to pass constitutional muster, and that the Justice Department will not defend that part of the law in two pending cases in the federal court.
In an interview this past weekend, Boehner told the Christian Broadcasting Network that the House GOPs were “researching all the options available to us.”
Full text of Gillibrand’s letter:
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.
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.
On July 8, 2010, in U.S. District Court in Boston, Judge Joseph L. Tauro ruled that Section 3 of the 1996 Defense of Marriage Act violated the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
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