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14 November 2011

Repudiation: Speaker Boehner defends DOMA

I had written earlier about President Obama's decision to not defend the Defense of Marriage Act (DOMA), which the administration believes to be unconstitutional.  The Speaker of the House, John Boehner, early this year authorized the expenditure of up to half a million dollars in defense of DOMA.  Later, that amount was tripled.  It may now be going up again.

The Speaker is using the so-called Bipartisan Legal Advisory Group (BLAG), a panel consisting of the Speaker and the leader and whip of each party, as the means of defending DOMA in the courts.  I say "so-called" because the BLAG is split along party lines.  This is not bipartisan, what is happening is entirely Republican.

In August, Paul Clement, the attorney hired by BLAG, filed briefs on why Edie Windsor's marriage should not be recognized by the federal government when her partner of 44 years, Thea Spyer, died and she was laden with much higher estate taxes than married couples pay when one dies.  The couple had wed in Toronto and resided in New York.  Think Progress had an excellent article on Mr. Clement's briefs at the time.

It isn't over.  A similar case is now in Pennsylvania, except that this time it is a suit between family members.  As reported in the Pittsburgh Post-Gazette
David and Joan Farley, the parents of the late Sarah Ellyn Farley, are fighting with Ms. Farley's wife, Jennifer Tobits, about who should get the $41,000 or so left from Ms. Farley's profit-sharing plan with Cozen O'Connor. The parents argue the ERISA-qualified plan implicates federal law, meaning DOMA would not allow the term "spouse" in the plan to be considered a person of the same sex.
Ms. Tobits argues that because ERISA doesn't define the term "spouse," the parties need only look to the plan itself and don't have to reach whether DOMA applies.

As written in the Legal Intelligencer
The case has picked up steam since first filed, with both the Farleys and Tobits changing counsel midstream. The Farleys are now represented by Chicago-based Thomas More Society and Tobits is represented by the National Center for Lesbian Rights.
The House advisory group said Cozen O'Connor and the Farleys told the group they did not oppose its motion to intervene and Tobits said she would take no position on the matter. The DOJ also said it would take no position on the motion, according to the group's filing.
In its memorandum in support of its motion to intervene, the advisory group said the DOJ would not be intervening to defend DOMA, but rather to "attack the statute," as it has done in a number of other cases. As part of the DOJ's policy shift moving away from defending DOMA, it has been advising the House of cases where the constitutionality of the law is at issue in case the House wanted to defend the law. The DOJ alerted the House to Cozen O'Connor on Sept. 23.
Because the DOJ will almost certainly look to attack the statute rather than defend it, the group said, the legislative body should be given the opportunity to step in to defend the law. The group also argued that the Farleys do not have the expertise to defend DOMA like the House does.

How many more taxpayer dollars are going to be wasted in attacking widows?  DOMA is blatant discrimination.  It is to for full equality and recognition of the love and commitment in every marriage.

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