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Gillibrand to House GOP: Don’t waste taxpayer money defending DOMA

Wednesday, March 2, 2011

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.

Gillibrand, in a letter to House Speaker John Boehner (R-Ohio), said Congress should focus its attention on job creation.

Sen. Kirsten Gillibrand

“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.

South Carolina

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16 more reader comments:

  1. Good, maybe they’ll finally realize that there’s no point in funding legislation built on hate and fear.

    Posted on Wednesday, March 2, 2011 at 7:17pm
  2. Power to the gays mhm wake up people the times they are changin!

    Posted on Wednesday, March 2, 2011 at 7:19pm
  3. its ironic how most republicans are against new types of taxes yet they are the ones making these gay-hating taxes…

    Posted on Wednesday, March 2, 2011 at 7:20pm
  4. I am suprised they are not grateful that GLBT pay taxes even though they are not given the rights they deserve. Funny how that works you support your country endlessly and they speak hate and refuse what should be yours as a citizen. Ya’ll are damn good people in my book.

    Posted on Wednesday, March 2, 2011 at 7:26pm
  5. Eric they aren’t making gay-hating taxes they are wasting taxpayers money by defending an unconstitutional act.

    Posted on Wednesday, March 2, 2011 at 7:32pm
  6. And people wonder why the hell I’m proud to be Canadian?
    If only the US could take after us in someways…

    Posted on Wednesday, March 2, 2011 at 7:33pm
  7. *Erik sorry for the typo

    Posted on Wednesday, March 2, 2011 at 7:36pm
  8. what about dont ask don’t tell?
    it took millions in tax payer money just to keep it up

    Posted on Wednesday, March 2, 2011 at 7:44pm
  9. it was a policy not a tax. the tax payer’s money enabled the gov to enforce it, but the policy was not a tax.

    Posted on Wednesday, March 2, 2011 at 7:47pm
  10. sorry for seeming slow but is the Don’t ask Don’t tell something bad for us gays? sorry really slow…

    Posted on Wednesday, March 2, 2011 at 8:28pm
  11. kyle: it is…
    joe: but as it turns out, since its been repealed tax payer cost have gone down…maybe its not a tax but they spend a portion on these types of policies…

    Posted on Wednesday, March 2, 2011 at 9:18pm
  12. i realise that i was stating that the republicans are not making anti gay taxes but policies that waste the tax payer’s money.

    Posted on Wednesday, March 2, 2011 at 9:23pm
  13. Was the don’t ask don’t tell about gays keeping it to themselves or something like that?

    Posted on Wednesday, March 2, 2011 at 9:51pm
  14. the dont ask dont tell actually protects gays in the military what if a exteremly prejudice person against gays was in the same platoon as a gay person,and found out. when you get shot and someone else get shot on the battlefield subconsciously who is the gay hating person going to chose to throw over there shoulder. its about trust and protection. but ppl who fear gays ppl don’t trust them so they won’t protect them like a straight person. its almost the same way with certain religions too its sad how much hate ppl have inside them. they can’t see that ppl are the same in the end they just all have different views. if u hater someone it should be about how they carry themselves or act not about there beliefs or life choices

    Posted on Wednesday, March 2, 2011 at 11:11pm
  15. in response of DADT “protecting” gays in the military, that isnt true. i am in the military and it was blatantly obvious that i was no where close near straight and i actually met someone that was against it, but that didnt stop him from still serving next to me. DADT is a disservice to any LGBTQ member in the military because we are not allowed to be ourselves and we feel even more fear of being discharged for unjust reasoning. i even have a NCO that is against the LGBTQ community but because i am a good solider, he is proud to serve next me and vice versa. please do not talk about being in the military and how serving next your brothers and sisters work without knowing yourself.

    Posted on Thursday, March 3, 2011 at 2:15am
  16. Gay/Queer/Lesbian/etc… is an activity; there is nothing in the U.S. Constitution that even hints at declaring suspect class status for a particular activity.

    FYI: The 14th century word “Pervert” is the proper descriptive of what you folks are/do; as opposed to the words you folks coined for yourselves in an effort to lend the appearance of acceptability to your depravity.

    You think opposition to killing babies will never die; what do you think will happen to opposition to special rights for a particular depravity?

    When a man and a women join as one the end result is quite often another human being, but when either two men, or two women bond the end result is always a stain.

    Every human being that ever existed is the by-product of one man and one women.

    Posted on Thursday, March 3, 2011 at 7:16am