As I have told you, the President and the attorney general will no longer defend the Defense of Marriage Act in the courts. It’s outrageous, it’s disingenuous, but it’s not the end of the story. As a co-equal branch of government, Congress has a stake in seeing that the laws it enacted are enforced and defended in the courts. The question is "Are they serious about doing so?"
Federal law requires the attorney general to notify the House if he decides not to defend the constitutionality of a federal statute. Federal law also authorizes the Senate and the House of Representatives to intervene in litigation over the constitutionality of a federal statute. What’s more, the House can hire outside counsel to represent its interests in the litigation if that’s the best way to defend the law.
There is ample precedent for the Congress defending a law after the executive branch declined to do so. The Ford Administration refused to defend post-Watergate campaign finance reforms; and the Reagan Administration declined to defend the independent counsel law. Congress stepped in and eventually prevailed at the Supreme Court.
The House appears to be preparing to follow this precedent. Speaker Boehner has announced he will “convene a meeting of the Bipartisan Legal Advisory Group for the purpose of initiating action by the House to defend” the law. This group, which includes the Speaker and the majority and minority leaders, plus the whips, is authorized to initiate the defense.
So far so good. But authorizing a defense or even filing briefs isn’t enough. What we should demand is a vigorousdefense of DOMA. If that requires hiring outside counsel that is committed to DOMA and its constitutionality, that’s what must be done.
We have already seen what the law’s fate is if left in the hands of people who oppose it. As I say on this week’s Two-Minute Warning (which you need to go see at ColsonCenter.org), even people who oppose DOMA have called the Obama Administration’s defense of the law “faint-hearted” and possibly “collusive.”
There is too much at stake to risk a repeat performance. If the Speaker and the House leadership “regret” the Administration’s actions, they have an opportunity to undo them and uphold the will of the Congress and the people, not to mention millennia of human experience and moral tradition.
But House and Senate leaders need to be reminded to do their duty. Remember last fall, going into the elections, Republican leadership had to be pressured into making even a perfunctory mention of the social issues that motivate their most loyal supporters. Even as he announced that he would convene the Bipartisan Legal Advisory Group, the Speaker criticized the President for “[opening] this divisive issue.” I don’t know about you, but that doesn’t exactly sound wholehearted to me. And since when is defending marriage divisive?
So if DOMA and traditional marriage are going to receive the defense they deserve, we Christians are going to have to hold Congress’s feet to the fire. We have to make it clear that actions, not words, will be the standard by which we judge what’s going on when we get to the voting booth. If we don’t put the pressure on Congress, then the question will be "Are we really serious about defending the institution of marriage?"