Romney White House Would Immediately Face Marriage Issue
To defend the Defense of Marriage Act, or to leave it alone?
by: Chris Geidner
President Mitt Romney’s administration would face tough decisions on the Defense of Marriage Act during his first month in office, and same-sex couples’ fight for federal recognition is one area where a Romney victory could lead to immediate changes.
Romney has avoided stumping on marriage, abortion, and other “social issues,” but questions of policy and law would be harder to avoid in the White House than on the campaign trail.
Ever since President Obama and Attorney General Eric Holder announced on Feb. 23, 2011, that they no longer would be defending the federal Defense of Marriage Act in federal court challenges over the law’s definition of “marriage” and “spouse,” many Republicans – including Romney – have highlighted the move as something that would not happen if Republicans controlled the executive branch. Although the Obama administration initially defended the law, Obama decided that the law was unconstitutional after a little more than two years into his time in office.
And now, if Romney were to win the presidency and change course again as he told
the National Organization for Marriage he would do, both the lawyers defending and those taking aim at the 1996 law agree that the Supreme Court could be entering uncharted waters.
The Supreme Court has been asked to consider the constitutionality of DOMA’s federal definitions, which bar recognition of same-sex marriages under all federal laws, in four different cases. BuzzFeed, along with others, have reported that the justices are not likely to consider to consider which, if any, of the cases it will hear until weeks after the election, likely Nov. 20, at the earliest. Because one court of appeals already has ruled that the law is unconstitutional, as well as the trial court judges in the other three cases, it is considered very likely that the Supreme Court will take one of the cases.
The federal government’s current position, argued in court by the Department of Justice, is that DOMA’s Section 3 is unconstitutional. The defense of the law has since been taken up by the House Bipartisan Legal Advisory Group (BLAG), which is controlled 3-2 by the House Republican leadership. If Romney wins, the Department of Justice would be overseen by an attorney general picked by Romney after he takes office on Jan. 20. (On the other ? less probable ? hand, the House leadership could flip to a 3-2 Democratic majority on BLAG earlier in January 2013 if Democrats do the unexpected and take back the House majority.)
If the court were to announce on Nov. 21 that it is taking a DOMA case, then the first brief in the case would be due, under ordinary Supreme Court rules, 45 days later. Because that falls on a weekend, the opening brief would be due Jan. 7 ? 13 days before Romney would take the oath of office.
Depending on election outcomes, advocates on all sides of the issue agree that what follows what follows could be quite complicated.
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