By Adelle M. Banks
Religion News Service
WASHINGTON -- If President Obama and the U.S. Department of Justice no longer want to defend the Defense of Marriage Act from challenges by gay rights activists, who will?
Leading conservative law firms say they're eager to defend the 1996 law that defines marriage as between a man and a woman, but that may not be so easy.
Could a conservative firm like Liberty Counsel, a Florida-based group that often opposes the administration, be the stand-in for the U.S. attorney general before a judge hearing DOMA challenges?
"That's what we're pursuing," said Mathew Staver, founder of the firm and dean of Liberty University School of Law. "Somebody has to step in and do the job when the attorney general and the president will abandon theirs."
Liberty Counsel had filed friend-of-the-court briefs in two DOMA court cases and is now strategizing with members of Congress to intervene on their behalf to defend the law that bans federal recognition of same-sex marriages.
"It's early in the process," said Staver, whose firm has litigated dozens of cases related to marriage -- including DOMA -- and represented Congress, state legislators and private organizations on other issues.
"We're still doing a lot of preliminary discussion."
Staver and other conservative lawyers have harshly criticized the announcement Wednesday (Feb. 23) by Attorney General Eric Holder that Obama had determined that DOMA is unconstitutional when applied to same-sex couples married legally under state law.
Last month, the Alliance Defense Fund submitted a brief on behalf of House Judiciary Committee Chairman Lamar Smith, R-Texas, in response to a Massachusetts challenge of DOMA being heard in a federal appeals court. Now it could be turning its attention to the cases in Connecticut and New York that prompted the administration's new decision.
"I have no doubt that the Alliance Defense Fund and other organizations will involve themselves in these cases," said Austin R. Nimocks, senior legal counsel for the Arizona-based firm. "The question is what is going to be the nature of the role. If somebody with (legal)
standing to intervene in these cases wants ADF to represent them, we will certainly explore that with them."
California's Proposition 8 -- which ended same-sex marriages in the state but was later ruled unconstitutional by a federal judge -- offers some clues to the road ahead.
The ADF is representing the group ProtectMarriage.com to defend the 2008 voter referendum after the state's governor and attorney general opted not to defend it; the California Supreme Court is weighing whether the group has legal standing to step in as the case heads to a federal appeals court.
The American Center for Law and Justice, a law firm founded by religious broadcaster Pat Robertson, also is mulling its role in the fight over DOMA.
Jordan Sekulow, a lawyer and policy director with the Washington-based firm, said attorneys are in private discussions with members of Congress and could represent some by filing amicus briefs or more directly representing them in court.
"It's possible that because of the politically charged nature of this that it's more likely for organizations who have taken a stand on this issue to lead the defense," he said.
His firm has represented dozens of members of Congress in recent cases, from opposing Obama's health care plan in Virginia and Florida to supporting the National Day of Prayer and disputed crosses erected in California.
But do these groups have a chance if they try to pick up where Justice Department lawyers left off?
John Witte, director of the Center for the Study of Law and Religion at Emory University, said conservative activists simply don't have the firepower or the "unrivaled" political power of administration lawyers.
"There's just no substitute for having the federal government's attorney general and Office of Legal Counsel involved in these cases," he said.
"Maintaining DOMA once the administration steps away ... is going to be much harder."
Our 2024 Coverage Needs You
It's Another Trump-Biden Showdown — And We Need Your Help
The Future Of Democracy Is At Stake
Our 2024 Coverage Needs You
Your Loyalty Means The World To Us
As Americans head to the polls in 2024, the very future of our country is at stake. At HuffPost, we believe that a free press is critical to creating well-informed voters. That's why our journalism is free for everyone, even though other newsrooms retreat behind expensive paywalls.
Our journalists will continue to cover the twists and turns during this historic presidential election. With your help, we'll bring you hard-hitting investigations, well-researched analysis and timely takes you can't find elsewhere. Reporting in this current political climate is a responsibility we do not take lightly, and we thank you for your support.
Contribute as little as $2 to keep our news free for all.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
The 2024 election is heating up, and women's rights, health care, voting rights, and the very future of democracy are all at stake. Donald Trump will face Joe Biden in the most consequential vote of our time. And HuffPost will be there, covering every twist and turn. America's future hangs in the balance. Would you consider contributing to support our journalism and keep it free for all during this critical season?
HuffPost believes news should be accessible to everyone, regardless of their ability to pay for it. We rely on readers like you to help fund our work. Any contribution you can make — even as little as $2 — goes directly toward supporting the impactful journalism that we will continue to produce this year. Thank you for being part of our story.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
It's official: Donald Trump will face Joe Biden this fall in the presidential election. As we face the most consequential presidential election of our time, HuffPost is committed to bringing you up-to-date, accurate news about the 2024 race. While other outlets have retreated behind paywalls, you can trust our news will stay free.
But we can't do it without your help. Reader funding is one of the key ways we support our newsroom. Would you consider making a donation to help fund our news during this critical time? Your contributions are vital to supporting a free press.
Contribute as little as $2 to keep our journalism free and accessible to all.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
As Americans head to the polls in 2024, the very future of our country is at stake. At HuffPost, we believe that a free press is critical to creating well-informed voters. That's why our journalism is free for everyone, even though other newsrooms retreat behind expensive paywalls.
Our journalists will continue to cover the twists and turns during this historic presidential election. With your help, we'll bring you hard-hitting investigations, well-researched analysis and timely takes you can't find elsewhere. Reporting in this current political climate is a responsibility we do not take lightly, and we thank you for your support.
Contribute as little as $2 to keep our news free for all.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
Dear HuffPost Reader
Thank you for your past contribution to HuffPost. We are sincerely grateful for readers like you who help us ensure that we can keep our journalism free for everyone.
The stakes are high this year, and our 2024 coverage could use continued support. Would you consider becoming a regular HuffPost contributor?
Dear HuffPost Reader
Thank you for your past contribution to HuffPost. We are sincerely grateful for readers like you who help us ensure that we can keep our journalism free for everyone.
The stakes are high this year, and our 2024 coverage could use continued support. If circumstances have changed since you last contributed, we hope you'll consider contributing to HuffPost once more.
Support HuffPostAlready contributed? Log in to hide these messages.