John Boehner has apparently decided that it’s pointless to continue defending the constitutionality of the Defense of Marriage Act. Thus, the Bipartisan Legal Advisory Group has begun to file motions withdrawing from those DOMA cases that remain in the courts. In one:
The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.
This will presumably happen in other cases as well, but I wonder about any cases that are challenging Section 2 of DOMA, the provision that says the states do not have to recognize same-sex marriages performed in other states where they are legal. Not only did the Windsor decision not affect Section 2, the federalist nature of the ruling clearly supports the constitutionality of that provision. And I’m pretty sure there are multiple cases in the courts challenging that provision. I also wonder if perhaps the DOJ is still defending the law in those cases. Anyone know?