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House Republicans add DOMA defense provisions to new rules for the upcoming Congress

DOMA trials

By Scottie Thomaston

According to a report by the Huffington Post, House Republicans have included their defense of Section 3 of DOMA in the rules package for the new Congress. Along with authorizing the Bipartisan Legal Advisory Group (BLAG) to continue its defense, the rules also say that BLAG speaks for the House of Representatives – something that is in some dispute both in House Democratic leadership and the legal filings in the cases. When House Republicans authorized BLAG to defend DOMA, the five-member group voted, not the full House. And that vote was 3-2 with Republicans stepping in to defend DOMA and Democrats voting against it.

The Huffington Post has the draft language here:


(A) The House authorizes the Bipartisan Legal Advisory Group of the 113th Congress —

(i) to act as successor in interest to the Bipartisan Legal Advisory Group of the 112th Congress with respect to civil actions in which it intervened in the 112th Congress to defend the constitutionality of section 3 of the Defense of Marriage Act (1 U.S.C. 7) or related provisions of titles 10, 31, and 38, United States Code, including in the case of Windsor v. United States, 833 F. Supp.2d 394 (S.D.N.Y. June 6, 2012), aff’d, 699 F.3d 169 (2d Cir. Oct. 18, 2012), cert. granted, No. 12–307 (Dec. 7, 2012), cert. pending No. 12–63 (July 16, 2012) and 12-ll (Dec.___2012);

(ii) to take such steps as may be appropriate to ensure continuation of such civil actions; and

(iii) to intervene in other cases that involve a challenge to the constitutionality of section 3 of the Defense of Marriage Act or related provisions of titles 10, 31, and 38, United States Code.

(B) Pursuant to clause 8 of rule II, the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.

This is a new step. Previously BLAG has simply reauthorized spending the money when they needed to increase the level of spending (which is currently at about $2 million.) Adding it to the House rules makes it somewhat of a priority for House Republicans, who, as the Huffington Post notes, have been fighting to rein in government spending.

A spokesman for House Democratic Leader Nancy Pelosi weighed in:

“As House Democrats have time and time again made clear, the BLAG does not speak for all Members of the House of Representatives and we will continue to oppose this wasteful use of taxpayer funds to defend DOMA,” he said.

Yesterday, House Republicans filed their own petition for Supreme Court review in Windsor. That move is seen as an attempt to get the issue of Section 3 of DOMA’s constitutionality definitively decided this year. The Justices accepted review of the Justice Department’s petition in the case and then asked the parties to brief the Court on whether the Justice Department’s agreement with the Second Circuit’s decision deprives the Court of the ability to hear the case. BLAG suggested that by filing their petition, there would be another way for the case to be decided this term if the Justice Department’s petition is not a proper vehicle for review. So this will likely be the first and last Congress to adopt a rule authorizing this defense.


  • 1. Nean  |  January 3, 2013 at 2:24 pm

    Emailed my representative right away on this one!

    [Newly wed in WA – after 28 yrs together. Thanks WA legislators and voters!]

  • 2. Mike in Baltimore  |  January 3, 2013 at 11:09 pm

    What would be funny (and not in a ha-ha sense) would be if SCOTUS decided that BLAG doesn't have standing in this case, and such decision would be precedent that BLAG doesn't have standing in any other case, unless they can prove that they would be personally harmed if (in this case) the law is overturned. Might be a bit difficult for them to prove standing.

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