House Speaker Wants to Divert Funds From Justice Dept. to Defend Marriage Law

By Penny Starr | April 18, 2011 | 1:40 PM EDT

Speaker of the House John Boehner. (AP Photo/J. Scott Applewhite)

( – Since the Justice Department is refusing to defend the Defense of Marriage Act in federal court, it won't be needing the money it would have used for that purpose. So give the money to the House of Representatives, which will defend the law, House Speaker John Boehner said on Monday.

"It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by...the House" in defending DOMA, Boehner wrote in a letter to House Democratic leader Nancy Pelosi (D-Calif.). 

In a March 11 letter to Boehner, Pelosi questioned how much it would cost taxpayers for the House to defend DOMA, which she and other Democrats oppose. She questioned the need for the House to involve itself in "such costly and divisive litigation."

On Monday, in his reply to Pelosi, Boehner said that diverting money from the Justice Department would protect taxpayers from any cost associated with the Obama administration’s refusal to defend the constitutionality of the law in court.

DOMA, signed into law by President Clinton in 1996, defines marriage at the federal level as being the legal union between one man and one woman. It also says that no state is required to recognize a same-sex marriage from another state.

The Obama Justice Department (DOJ) announced in February that it would not defend the constitutionality of DOMA. Two lawsuits filed in the Second Circuit Court of Appeals have challenged DOMA's definition of marriage.

In an Apr. 18 letter to Minority Leader Pelosi (D-Calif.), Boehner asked her to join him in requesting that the Justice Department redirect funds to the Bipartisan Legal Advisory Group, which will take the first steps in handling the case for the House. (The BLAG is comprised of the Speaker, and the majority and minority leaders and the whips.)

The Bipartisan Legal Advisory Group’s defense of DOMA is necessary, said Boehner in his letter to Pelosi, because if the law is not defended in court “the constitutionality of the law would have been determined by a unilateral action of the President.”

“By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality,” the letter said. “The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been borne by DOJ, has fallen to the House.”

“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” Boehner wrote.  “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.” 

On Feb. 23, 2011, Attorney General Eric Holder released a statement explaining President Barack Obama’s decision not to defend DOMA in federal cases.

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder’s statement said.   “The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”

“Given that conclusion, the president has instructed the Department not to defend the statute in such cases,” Holder’s statement said. “I fully concur with the President’s determination.”

The statement also said that if members of Congress wanted to defend the law, they could “pursue that option.”

Boehner said the House of Representatives is indeed going to defend the law and he urged Democrats to join the effort.

“I would welcome your joining me in support of redirecting those resources from the DOJ to the House that would otherwise have been necessary expenses on the Attorney General to defend this federal statute.” Boehner’s letter to Pelosi concludes.  “In the interim, I have directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.”

It was reported on Monday that former Solicitor General Paul Clement has agreed to defend DOMA in court. Clement served as solicitor general, from July 2004 to June 2008, in the administration of President George W. Bush.