MARY LOUISE KELLY, host:
A federal law, the Defense of Marriage Act, is under challenge in a New York court today. Congress passed the law 15 years ago by big majorities. It defines marriage as being between a man and a woman. Now, normally the Justice Department would speak up when a federal law is challenged, but this time the Obama administration has declined to defend a law it considers unconstitutional. So Republicans in Congress are rushing into the breach.
NPR's Carrie Johnson reports on the controversy.
CARRIE JOHNSON: Republican leaders in the U.S. House say President Obama's turnaround on the anti-gay marriage law left them with few options. Here's House Speaker John Boehner at a recent news conference.
House Speaker JOHN BOEHNER: (Republican, Ohio; Speaker of the House): I don't think the House had any choice but to take the position that we were going to defend the work of the Congress. And only the courts are in the position of determining the constitutionality of any bill.
JOHNSON: Sources tell NPR that Boehner is hiring a big-name Republican lawyer to argue for the constitutionality of the Defense of Marriage Act, or DOMA.
For the past two years, the Obama Justice Department filled that role, backing the law in courts across the country. But in February, Mr. Obama instructed the Justice Department to back off.
The change in course has conservatives hopping mad.
Representative TRENT FRANKS (Republican, Arizona): Far from cautious and deferential, the president's decision was a badly opportunistic attempt to free himself from a political dilemma.
JOHNSON: That's Arizona Republican lawmaker Trent Franks at a House hearing last week. He says the White House walked away to please supporters in the gay rights community, who include some of his largest donors.
Rep. FRANKS: The president and the administration had a duty to defend the Defense of Marriage Act, but powerful constituencies of the president did not want the president to defend it. And unfortunately politics trumped duty.
JOHNSON: But New York Democratic Jerrold Nadler, a longtime supporter of gay rights, says the Republicans are on the wrong side of history.
Representative JERROLD NADLER (Democrat, New York): Rather than defending DOMA in court, Congress should be working to repeal it. There is no redeeming moral value to a law whose sole goal is to persecute a group of people for no reason and no benefit to anyone else.
JOHNSON: Advocates for gay and lesbian people had been lobbying against DOMA for years. They cite cases like Edie Windsor's. She spent more than 40 years with her partner, Thea.
They got married in 2007, but the federal government didn't recognize the marriage. And when Thea died, Edie got a tax bill of more than $360,000 on the money Thea left her.
Carlos Ball, a professor at Rutgers Law School, says that's not fair.
Dr. CARLOS BALL (Rutgers Law School): There is no rational reason to impose a huge tax obligation on Edie that is not imposed on other New York widows. And that is just one example of why DOMA is unconstitutional.
JOHNSON: Until this year, the White House and many lawyers at the Justice Department said they didn't like the Defense of Marriage Act, but they defended it anyway, just as past administrations have defended whatever laws were on the books.
DOMA provoked debate at the highest levels of the Justice Department. Some officials, including Acting Solicitor General Neal Katyal, were more comfortable deferring to Congress.
But such qualms were eventually overruled by the attorney general and the president. That upsets Ed Whelan, who worked in the Bush Justice Department.
Mr. ED WHELAN (Former Justice Department Official): The Obama administration's decision to abandon its defense of DOMA, or more precisely to abandon its charade of pretending to defend DOMA, departs sharply from the Department of Justice's longstanding practice.
JOHNSON: Senate Republicans have found one way to fire back. They're considering Don Verrilli, Mr. Obama's nominee to replace Katyal as solicitor general. GOP lawmakers have been interrogating him about his independence and his respect for Congress. Verrilli wasn't involved in the decision to walk away from DOMA, but so far he's been the man paying the price.
Carrie Johnson, NPR News, Washington.
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