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McCarthy, small House group, fight same-sex marriage in court

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For the tenth time this year, a small group of congressmen including Kevin McCarthy is asking to join a lawsuit for the purpose of defending the constitutionality of a law defining marriage as only between a man and a woman.

McCarthy and his fellow Republican members of the House Bipartisan Legal Advisory Group argue that if the Obama Justice Department won't fight for the man-woman marriage law in court, they should and will.

A leading local spokeswoman for gay rights says it's an example of McCarthy blindly following the will of his party. McCarthy has argued the group is merely making up for Obama shirking his constitutional responsibility.

One of the most recent cases in which the congressional advisory group wants to "intervene" -- in this case become a defendant -- involves the parents and the same-sex partner of a deceased attorney who both claim to be the beneficiaries of her law firm's profit-sharing plan.

David and Joan Farley of Virginia claim Jennifer Tobits of Chicago, who married their daughter, Sarah Ellyn Farley, in Canada in 2006, is not a surviving "spouse" under the plan because the Defense of Marriage Act defines spouse as referring "only to a person of the opposite sex who is a husband and a wife," according to a motion to intervene filed by the House group.

Tobias, the dead woman's partner, argues the definition of spouse in the marriage law does not apply to the profit-sharing plan and if it does, that section violates Fifth Amendment equal protection and due process rights.

The judge in the case, which is being litigated in the U.S. District Court for the Eastern District of Pennsylvania, has asked the parties to submit briefs on whether the Defense of Marriage Act violates the constitution. He's also given the federal government time to weigh in if it wants to.

But the Justice Department has already made it clear it won't defend the marriage act in the courts, the congressmen argue in filings. So, they say, they should be allowed to become a party in the case for the sole purpose of defending the act.

President Bill Clinton signed the Defense of Marriage Act in 1996 after it passed both houses of Congress by large margins.

"The House self-evidently has a strong interest in defending the constitutionality of its legislative handiwork given the House's central constitutional role in creating the legislation," the motion states.

The law firm and the parents of the woman who died do not oppose the congressmen's motion to intervene; the partner hasn't taken a position, according to documents filed in the case.

The members of the House Bipartisan Legal Advisory Group are House Speaker John Boehner, R-Ohio; Majority Leader Eric Cantor, R-Va.; Majority Whip McCarthy, R-Bakersfield; Minority Leader Nancy Pelosi, D-Calif;, and Minority Whip Steny Hoyer, D-Md. But in a vote cast last March, only the GOP members chose to direct the House general counsel to defend the Defense of Marriage Act in court.

McCarthy's office said this past week he didn't have time to discuss the legal advisory group's efforts. But it released this statement from him Friday:

"The Defense of Marriage Act was passed with bipartisan support over 15 years ago and is the law of the land. When federal laws are the subject of a federal lawsuit, the Department of Justice typically defends those laws in court.

"Unfortunately, Attorney General Holder and the Obama Administration have chosen to walk out on their responsibility, and the House has stepped in. Regardless of personal opinion, we cannot pick and choose which laws to support. They are the law and we must defend the law."

Pelosi put out a very different statement in March when she voted against intervening in cases challenging the marriage law:

"President Obama took a bold step forward for civil rights when he announced that the federal government would no longer argue to uphold the Defense of Marriage Act in court," she said. "DOMA is discriminatory; it's unfair and indefensible; and it betrays our nation's long-held -- and long-cherished -- value of equality for all."

The House legal advisory group has moved to intervene in nine other cases where the constitutionality of the Defense of Marriage Act is at issue, according to its motion in the Pennsylvania district case, dated Nov. 4. Seven of the motions have been granted; two are pending.

The filing says the House of Representatives has "articulated its institutional position in litigation matters" since at least the early 1980s. It's rare, though, for the advisory group to step into a case because the Justice Department won't defend the constitutionality of a law -- because the occasion rarely arises.

When full consensus on when to intervene in a case can't be reached -- like with these Defense of Marriage Act-related lawsuits -- the majority wins out, according to the court document.

The day-to-day handling of the Defense of Marriage Act cases is done by the House general counsel and outside attorneys hired for the job. But those lawyers consult the congressmen from time to time on the direction to take.

McCarthy would seem to be acting per the will of a lot of his constituents. In 2008, 75 percent of Kern County voters backed Proposition 8, California's same-sex marriage ban. The district includes most of Kern plus pieces of San Luis Obispo and Los Angeles counties.

Still, local gay-rights activist Whitney Weddell was none too pleased to hear about what he and his colleagues in the Bipartisan Legal Advisory Group are doing in court.

"I'm not at all surprised Kevin McCarthy would be part of that," Weddell said. "In his role as whip, he goes with the party line without thinking too much.

"I wish we had a guy who, if he cared about family values, would care about mine."

Weddell said she's not sure the current U.S. Supreme Court would uphold same-sex marriage. But, she said, those who support gay marriage have their best chance yet given that powerhouse attorneys Theodore Olson and David Boies, who represented George W. Bush and Al Gore, respectively, in the 2000 who-won-the-presidency case, are the ones arguing for it.

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Updated: 12/7/21