Days After Obama's Support of Same-Sex Marriage, Congressional Group Seeks to Block DOMA Lawsuit

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Just days after President Barack Obama declared his support of gay marriage, a standing body of the U.S. House of Representatives will try to block an attempt by five legally married same-sex couples to strike down the federal Defense of Marriage Act, or DOMA.

The House of Representatives’ Bipartisan Legal Advisory Group, known as BLAG, plans to intervene this week in a federal lawsuit pending in Brooklyn brought by married same-sex couples from New York, Vermont and Connecticut. They argue that DOMA violates their constitutional rights by preventing them from sponsoring their spouses for green cards. 

The Obama administration announced last February that it would no longer defend DOMA because it believed the act to be unconstitutionally discriminatory. Since then, BLAG has routinely filed motions seeking to block federal lawsuits brought by plaintiffs trying to strike down DOMA as unconstitutional. Gay rights organizations estimate nearly a dozen cases challenging DOMA are currently pending across the country.

Although the plaintiffs in the Brooklyn case said BLAG’s intervention was expected when they filed their complaint in April, they said Obama’s sudden support of gay marriage last week places BLAG’s repetitive strategy in a new light. 

“In a week when our government from the very, very top has been really clear that gay and lesbian couples should be treated equally, it’s just a waste of taxpayer resources,” said Rachel Tiven, executive director of Immigration Equality, the advocacy group heading the litigation on behalf of the individual plaintiffs.

DOMA, enacted in 1996, prevents the federal government from legally recognizing same-sex marriages.  It therefore mandates the denial of federal benefits to gay married couples that straight married couples receive. 

The Brooklyn lawsuit focuses on the disparity of DOMA that results under federal immigration law.  Currently, a foreign spouse in a heterosexual marriage can apply for a green card.  Gay spouses in foreign countries cannot apply for legal permanent residency, even if they are legally married under state law because their marriages are not recognized under federal law.

“If you are separated from your husband or your wife,” Tiven said, “if you are physically unable to live in the same country because of the Defense of Marriage Act, you think about that every minute of every day.”

 The case promises to be one of the most closely watched DOMA challenges now grinding away in the federal courts.  Lawyers for Immigration Equality said bringing the case in Brooklyn was a strategic decision because if the case advances to an appeals court, it will be heard by the United States Court of Appeals for the Second Circuit.  The Second Circuit has appellate jurisdiction over all federal district court cases in New York, Connecticut and Vermont – three states that have legalized same-sex marriage at the state level.  The Second Circuit is the only circuit where same-sex marriage is legal in every state within its jurisdiction.

The plaintiffs include immigrants from South Africa, Japan, Venezuela and England.  The lawsuit, filed in the Eastern District of New York, was brought against Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano and immigration officials.

BLAG informed Immigration Equality in writing of its intent to intervene in the lawsuit on Friday, May 4, days before Obama announced his support of same-sex marriage.  At the time, BLAG wrote that it would file its motion to intervene “probably within the next week or so.” 

BLAG is comprised of five members of the House leadership – the Speaker, the majority and minority leaders and the majority and minority whips.  It controls the activities of the House’s General Counsel, which will be filing the legal briefs for the litigation.

Calls to the office of the House’s General Counsel were not returned to confirm its intent to intervene after Obama’s announcement. 

Gay rights advocates estimate BLAG has spent more than $100 million to defend DOMA in the federal court system just in the past year.