In an effort to breathe new life into legislation to protect marriage nationwide, the ranking Republican in the House Judiciary Committee, Lamar Smith of Texas, and his legal team have filed two motions in defense of the 1996 Defense of Marriage Act.
The motions, filed Tuesday, argue that the act has been left vulnerable to legal challenge because "the [Department of Justice]'s current DOMA defense, which happens to fit the current administration's policy preferences, is really no defense at all."
DOMA, enacted in 1996 under the Clinton administration, defines marriage as "a legal union between one man and one woman as husband and wife" and the word "spouse" as "a person of the opposite sex who is a husband or a wife" for the benefit of federal laws for items such as federal employee benefits. The act also re-establishes states' right to define marriage in their own terms without having to defer to other state rulings.
DOMA was challenged and declared unconstitutional in two lawsuits. In The Commonwealth of Massachusetts v. the U.S. Department of Health and Human Service, Judge Joseph L. Tauro of the Massachusetts District Court issued a ruling denying a USDHHS motion to dismiss the state's lawsuit, proclaiming that DOMA violates the 5th and 10th Amendments. In companion case Gill v. Office of Personnel Management, a similar ruling was given.
Both rulings have since been appealed, but the appeals have been sitting idly for over two months, complained Smith and the attorneys representing him.
Dale Schowengerdt, legal counsel with the Alliance Defense Fund, further decries how DOMA is being under represented by the DOJ.
In its motion Tuesday, ADF asserted, "The DOJ's practical abdication of its own proven legal arguments, plus its ambivalence on whether it will even appeal, warrants intervention to ensure that widely-supported Congressional legislation like DOMA receives a fair and vigorous defense."
"If the Obama administration won't defend marriage, we are ready and willing to do so," Schowengerdt added.
According to Pacific Justice Institute Chief Counsel Kevin Snider, Smith and ADF will have to demonstrate "an interest in the motion's outcome that is unique" in order for the motions to be successful.
"It is usually to protect interests that are being under represented," he added.
Snider also highlighted how some suggest that the attorney general and DOJ may be ambivalent toward the act because "President Obama has articulated some displeasure in DOMA."
Though opposed to the federal marriage act, the Justice Department filed a motion last year to dismiss a gay couple's lawsuit against DOMA. Obama explained at the time that he had a duty to uphold existing law.
In the same statement, the president also reiterated his commitment to reverse the act. His administration has stated that it "does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."
Despite the "displeasure," Snider said he hopes that the attorney general will continue to "defend the law fully and vigorously, even the laws they don't believe in."
"[I]t's their job," he reasoned.