10/20/2011 12:24 pm ET Updated Dec 06, 2017

Boehner's DOMA Defense: Gay People Are Powerful, Can Fight Marriage Ban Without Courts

WASHINGTON -- Gay people have the political power to sway Congress to combat discrimination against them, so there's no need for a court to overturn the federal ban on gay marriage, according to lawyers defending the Defense of Marriage Act on behalf of Speaker John Boehner (R-Ohio) and the House of Representatives.

In an Oct. 14 motion filed with the U.S. District Court in San Francisco, attorneys representing the House make the case that gay people "are far from politically powerless" and can't say they face "discrimination [that] is unlikely to be soon rectified by legislative means" -- unlike other groups of people who are discriminated against.

"The very significant gains made by homosexual-rights groups both in legislative terms and in popular opinion -- and the phenomenal speed at which those victories have come -- demonstrate that they have ample ability to attract the favorable attention of lawmakers," reads the 36-page brief filed by Bancroft PLLC, the firm hired by House Republican leaders to defend the constitutionality of DOMA.

The document ticks off political victories by the gay rights community over the past few years, including Senate confirmation of the first openly gay male federal judge, New York's legalizing gay marriage and, of course, repeal of "Don't Ask, Don't Tell." It also cites a recent Gallup poll that found more than two-thirds of Americans would vote for a "well-qualified gay candidate for president" if he or she were put up by their party.

"Accordingly, gays and lesbians cannot be labeled 'politically powerless' without draining that phrase of all meaning," the lawyers argue. "Where a group is not lacking in political power, it cannot claim the 'extraordinary protection from the majoritarian political process' provided by heightened scrutiny."

In other words, their defense of DOMA is that discrimination against gay people is legally okay because it probably will be rectified in time by Congress.

Gay people also haven't been discriminated against for very long, so they can't say they have a history of discrimination, the lawyers say. The label of "homosexual" was "not even recognized in the United States until the late nineteenth century," they argue, citing a 2004 interview with the author of a book on gay marriage who said most anti-gay discrimination was "put in place between the 1920s and 1950s, and most [was] dismantled between the 1960s and the 1990s."

The House legal team also says that gay people can't consider their sexuality an "immutable" trait, like race or gender, and can't argue that DOMA violates their fundamental rights because it doesn't keep anyone from building a family with his or her same-sex partner. The lawyers also challenge the idea that gay people raise well-adjusted children and say that DOMA is justified because it "promotes responsible procreation."

"There is nothing intrusive in the least about DOMA," the lawyers conclude. "It is simply a definitional statute that defines, for federal law purposes, 'marriage' and 'spouse.'"

(For legal wonks: Boehner's attorneys are trying to prove that gay people are not a "discrete and insular minority." That was the language the courts first used when announcing in the late 1930s that they would hold to the fire laws that discriminate against certain minorities under the equal protection clause of the 14th Amendment.)

Aides to House Republican leaders apparently wanted nothing to do with the latest DOMA proceedings. A spokeswoman for House Majority Leader Eric Cantor (R-Va.) deferred to Boehner's office when asked for a comment about the House defense. A Boehner spokesman deferred to the lawyers on the case. The firm did not return a request for comment.

Boehner decided the House would defend DOMA after Attorney General Eric Holder announced in February that the administration considered the law unconstitutional and would no longer defend it in court. In March, a five-person House Bipartisan Legal Advisory Group voted along party lines to direct the House General Counsel to initiate a legal defense of DOMA. The three "yes" votes came from Boehner, Cantor and House Majority Whip Kevin McCarthy (R-Calif.); the two "no" votes came from House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.).

Pelosi and Hoyer declined to support the Oct. 14 brief, according to a footnote on the last page.

The House is spending up to $1.5 million in taxpayer dollars to defend DOMA, although it remains unclear where that money will come from specifically. The lawsuit was initially expected to cost $500,000, but the contract ultimately drawn up between the House and the Bancroft firm reflects three times the original figure.

The lead lawyer representing House Republicans, Paul Clement, served as U.S. solicitor general under President George W. Bush. He originally took the case while a partner at the law firm King & Spalding. But after receiving significant criticism from gay rights groups, the firm withdrew its representation, citing "inadequate" vetting of the contract. Clement left the firm and joined Bancroft, bringing the case with him.

Karen Golinski, a lesbian federal employee, filed the lawsuit in January 2010, claiming the government had wrongly denied health insurance coverage to her same-sex partner. Golinski is suing on the grounds that DOMA violates the Constitution's guarantee of equal protection.

A hearing in the case, Golinski v. U.S. Office of Personnel Management, is scheduled for Dec. 16.