What’s Next In The Battle Over DOMA

The Justice Department’s decision not to defend the Defense of Marriage Act in court has sent anti-gay marriage groups into a fundraising frenzy and forced House Speaker John Boehner (R-OH) into the uncomfortable position of either defending a law that many agree will be found unconstitutional or put a social issue front-and-center (after he vowed to focus on fiscal issues).Boehner has criticized the Obama administration’s decision, but he’s focused more on the legal decision not to defend laws than he has on the actual social issue at hand. He’s indicated that the House might step in to defend the law and said he’ll make a final decision by Friday.

One group that is pushing Boehner to defend the law is the National Organization for Marriage (NOM), which has been fundraising off the Obama Administration’s decision last week that part of the law was unconstitutional.

Like at least one of the groups that maintains DOMA is unconstitutional, NOM’s Maggie Gallagher also anticipates congressional intervention, telling TPM that they “fully expect the House to intervene” and that they were encouraged by Boehner’s comments (she declined to answer any additional questions except via e-mail).

A fundraising e-mail from NOM states that the Obama Administration and Massachusetts must agree by March 18 on a plan for how the pending DOMA litigation will proceed.

“That’s right, when President Obama declared the Defense of Marriage Act unconstitutional last week, the Court ordered the administration to get together with the plaintiffs to develop a plan for the litigation – Eric Holder sitting down with Massachusetts Attorney General Martha Coakley to plan the future of DOMA!” the e-mails say.

“If Congress doesn’t step up quickly to defend DOMA, the Defense of Marriage Act may soon be history – the victim of an administration that is deliberately undercutting the very laws it is duty-bound to defend.” (That’s not quite right — there’ve been a number of instances when the Justice Department has decided not to defend a law passed by Congress.)

Former acting Solicitor General Walter Dellinger told TPM in an interview that the Justice Department’s decision was “not unprecedented, but it is infrequent.”

Dellinger, who spoke at a brown bag lunch with Justice Department lawyers in the LGBT group DOJ Pride in the fall, said this type of decision has only happened on average about once a decade.

“This was not a decision the Department of Justice was looking for, this was a decision that was thrust upon it,” Dellinger said in an interview. “So it was going to have to for the first time make a filing that took a position on what is probably the single most important legal issue that is facing the gay rights movement in America.”

That issue — whether complaints of discrimination from gays and lesbians should face “heightened scrutiny” — has been “looming on the horizon for some time, but this is the first time that the government and this administration has been required to address it,” Dellinger said.