The ongoing dispute between the House Republican and Democratic leadership over the defense of federal laws banning recognition of same-sex married couples reached a new level today as House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) claimed that a planned filing by the lawyers representing the House Republicans to oppose equal veterans benefits to a same-sex married couple would "clearly exceed" the authority given in 2011 to the House's general counsel.
In a planned court filing obtained by Metro Weekly that is expected to be filed on Monday, April 2, the House Bipartisan Legal Advisory Group -- which is controlled by a 3-2 House Republican leadership majority -- will be asking the court to intervene in the case of Tracey Cooper-Harris and her wife, Maggie, who are suing the federal government for equal veterans benefits in a cased backed by the Southern Poverty Law Center.
According to the letter sent by Pelosi and Hoyer to House Speaker John Boehner (R-Ohio) today, the pair stated that they "strongly object" to the intervention and believe that it "clearly exceeds the scope of the original BLAG authorization."
Christine Sun, the deputy legal director at SPLC, tells Metro Weekly, "It's shameful that House Republicans would rather spend taxpayer money to defend discrimination than honor our gay and lesbian veterans."
The Cooper-Harris lawsuit -- like the Servicemembers Legal Defense Network's McLaughlin v. Panetta lawsuit -- raises claims based on the constitutionality of the Defense of Marriage Act and two specific provisions of Title 38 of the U.S. Code, which relate to veterans benefits and independently define "spouse" as only pertaining to opposite-sex spouses.
It is the defense of those provisions in Title 38 that Pelosi and Hoyer claim fall outside the scope of the original authorization given on March 9, 2011. At that time, the five members of BLAG voted 3-2 along party lines to recommend that the House general counsel "take such steps as he considers appropriate ... to protect the interests of the House in litigation in which the Attorney General has ceased to defend the constitutionality of Section 3 of the Defense of Marriage Act."
[UPDATE @ 11:45A SATURDAY: Boehner spokesman Brendan Buck tells Metro Weekly this morning, "It was determined through consultations with each office -- the process used to make such decisions regularly under then-Speaker Pelosi -- that a majority of the BLAG believes the constitutionality of this statute, which the Attorney General described as 'identical in material respect to the language of Section 3 of DOMA,' should be determined by the judicial branch, not through a unilateral decree of the President."
In other words, though no formal vote was held, Buck states that a majority of BLAG decided to expand the DOMA defense into including statutes like those in Title 38 that are essentially the same as DOMA.]
In explaining the lawsuit on its website, SPLC states, "Tracey Cooper-Harris served for 12 years in the U.S. Army and received multiple commendations. But because she's in a marriage with a person of the same sex, the government refuses to grant her the same disability benefits as heterosexual veterans."
Once informed of the planned intervention, Pelosi and Hoyer wrote to Boehner with their concerns, writing, "As members of the House Bipartisan Legal Advisory Group (BLAG), who were not consulted prior to this unwise decision, we strongly object to spending taxpayer money to intervene in this case against a decorated veteran, Tracey Cooper-Harris, and her spouse, Maggie Cooper-Harris. This decision clearly exceeds the scope of the original BLAG authorization, with which we initially disagreed."
Describing the specifics of the case and the claim by SPLC's lawyers that the denial of equal benefits is unconstitutional, Pelosi and Hoyer write: "We agree, and note that the U.S. Department of Justice has notified Congress that Section 3 of DOMA -- as well as the definitional portions in Title 38 dealing with military and veterans' benefits -- 'cannot be constitutionally applied to same-sex couples who are legally married under state law.' We applaud the decision of the Attorney General against defending indefensible discrimination."
In its planned filing, however, BLAG argues that DOMA and the relevant provisions of Title 38 -- which deal with veterans benefits -- are constitutional.
Specifically, in the planned filing, BLAG's lawyers state, "Section 101(3), (31) of Title 38 of the United States Code is consistent with, and does not violate, the equal protection component of the Due Process Clause of the Fifth Amendment of the U.S. Constitution -- as well as every other provision of the U.S. Constitution."
Pelosi and Hoyer have criticized the past DOMA defense by BLAG, but this is the first time that BLAG is planning to take action to defend a law other than DOMA in conjunction with these cases.
A spokesman for Boehner did not respond to a request for comment on Friday evening.
READ the full Pelosi/Hoyer letter below the jump.
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March 30, 2012
The Honorable John Boehner
Speaker of the House of Representatives
United States Capitol
H-232, The Capitol
Washington, D.C. 20515
Dear Mr. Speaker:
Today, we were notified that the House, through outside counsel acting at your direction, has decided to intervene in a case challenging the constitutionality of laws denying federal benefits to military spouses on the basis of their sexual orientation. As members of the House Bipartisan Legal Advisory Group (BLAG), who were not consulted prior to this unwise decision, we strongly object to spending taxpayer money to intervene in this case against a decorated veteran, Tracey Cooper-Harris, and her spouse, Maggie Cooper-Harris. This decision clearly exceeds the scope of the original BLAG authorization, with which we initially disagreed.
This intervention once again puts the House of Representatives on the wrong side of the future – supporting discrimination, unfairness, and the denial of basic equality to all Americans. We have objected to prior decisions by the House Republican BLAG members to spend hundreds of thousands of taxpayer dollars to defend discrimination. This latest decision not only ignores the civil rights of LGBT Americans but opens a new, direct assault on veterans. The men and women of our Armed Forces serve with courage and dignity on behalf of our safety and security. They risk their lives for the country they love – and they should not face prejudice at home because of whom they love. These brave soldiers deserve nothing less than our gratitude, our respect, and the benefits they have earned in battle.
The plaintiffs in Cooper-Harris v. U.S. argue that federal law, including Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and portions of the Veteran’s Benefits title of the United States Code, 38 U.S.C. § 101(3) and (31), denies them equal protection under the law by failing to uphold our promises to our servicemembers to care for them and their families. We agree, and note that the U.S. Department of Justice has notified Congress that Section 3 of DOMA – as well as the definitional portions in Title 38 dealing with military and veterans’ benefits – “cannot be constitutionally applied to same-sex couples who are legally married under state law.” We applaud the decision of the Attorney General against defending indefensible discrimination.
Federal district courts have already deemed DOMA unconstitutional, and the Justice Department will not defend the law. We call upon the Republican members of the BLAG to rescind your unilateral decision to expand your defense of DOMA to cases involving veterans. If you insist upon continuing this costly and wasteful use of hundreds of thousands of dollars of taxpayer funds, we request: (a) a formal vote of the BLAG on extending your defense of discrimination to veterans and their families, and (b) any extension of the existing legal contract, any new contract, and any additional expenditure of public funds on behalf of outside counsel receive full prior examination by the Committee on House Administration and the House Ethics Committee.
We look forward to receiving your response to this and the several previous letters from House Democrats on this subject.
Thank you for your attention to this matter.
NANCY PELOSI STENY H. HOYER
Democratic Leader Democratic Whip