If Obama won't fight gay marriage, conservatives will

February 25, 2011

WASHINGTON (RNS) If President Obama and the U.S. Department of Justice
no longer want to defend the Defense of Marriage Act from challenges by
gay rights activists, who will?

Leading conservative law firms say they're eager to defend the 1996
law that defines marriage as between a man and a woman, but that may not
be so easy.

Could a conservative firm like Liberty Counsel, a Florida-based
group that often opposes the administration, be the stand-in for the
U.S. attorney general before a judge hearing DOMA challenges?

"That's what we're pursuing," said Mathew Staver, founder of the
firm and dean of Liberty University School of Law. "Somebody has to step
in and do the job when the attorney general and the president will
abandon theirs."

Liberty Counsel had filed friend-of-the-court briefs in two DOMA
court cases and is now strategizing with members of Congress to
intervene on their behalf to defend the law that bans federal
recognition of same-sex marriages.

"It's early in the process," said Staver, whose firm has litigated
dozens of cases related to marriage -- including DOMA -- and represented
Congress, state legislators and private organizations on other issues.

"We're still doing a lot of preliminary discussion."

Staver and other conservative lawyers have harshly criticized the
announcement Wednesday (Feb. 23) by Attorney General Eric Holder that
Obama had determined that DOMA is unconstitutional when applied to
same-sex couples married legally under state law.

Last month, the Alliance Defense Fund submitted a brief on behalf of
House Judiciary Committee Chairman Lamar Smith, R-Texas, in response to
a Massachusetts challenge of DOMA being heard in a federal appeals
court. Now it could be turning its attention to the cases in Connecticut
and New York that prompted the administration's new decision.

"I have no doubt that the Alliance Defense Fund and other
organizations will involve themselves in these cases," said Austin R.
Nimocks, senior legal counsel for the Arizona-based firm. "The question
is what is going to be the nature of the role. If somebody with (legal)
standing to intervene in these cases wants ADF to represent them, we
will certainly explore that with them."

California's Proposition 8 -- which ended same-sex marriages in the
state but was later ruled unconstitutional by a federal judge -- offers
some clues to the road ahead.

The ADF is representing the group ProtectMarriage.com to defend the
2008 voter referendum after the state's governor and attorney general
opted not to defend it; the California Supreme Court is weighing whether
the group has legal standing to step in as the case heads to a federal
appeals court.

The American Center for Law and Justice, a law firm founded by
religious broadcaster Pat Robertson, also is mulling its role in the
fight over DOMA.

Jordan Sekulow, a lawyer and policy director with the
Washington-based firm, said attorneys are in private discussions with
members of Congress and could represent some by filing amicus briefs or
more directly representing them in court.

"It's possible that because of the politically charged nature of
this that it's more likely for organizations who have taken a stand on
this issue to lead the defense," he said.

His firm has represented dozens of members of Congress in recent
cases, from opposing Obama's health care plan in Virginia and Florida to
supporting the National Day of Prayer and disputed crosses erected in

But do these groups have a chance if they try to pick up where
Justice Department lawyers left off?

John Witte, director of the Center for the Study of Law and Religion
at Emory University, said conservative activists simply don't have the
firepower or the "unrivaled" political power of administration lawyers.

"There's just no substitute for having the federal government's
attorney general and Office of Legal Counsel involved in these cases,"
he said.

"Maintaining DOMA once the administration steps away ... is going to
be much harder."