WASHINGTON — Last year, when Republican Gov. Mitch Daniels of Indiana proposed a “truce” on social issues, conservatives feared the GOP leadership might back off from the culture wars. Now, that worry may be laid to rest as the Speaker of the House of Representatives formally announced his plan to defend the Defense of Marriage Act (DOMA).
Engaged in a tense budget standoff on Capitol Hill, House Republicans were caught off guard on Feb. 23, when the White House abruptly announced that it would no longer defend the constitutionality of DOMA. Five days passed before House Speaker John Boehner announced that the Republicans would act to defend DOMA, and four more days followed before the speaker outlined the leadership’s legal strategy.
But this afternoon Boehner announced that he will convene a meeting of the Bipartisan Legal Advisory Group “for the purpose of initiating action by the House” to defend the law.
“It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner said in a statement. “The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”
The delayed response underscored the challenges that lie ahead, as the GOP expends political capital defending a contentious social policy, while the nation waits for a resolution to protracted negotiations for cutting the federal deficit.
Questions remain about what steps the House advisory group is likely to take, and how it should signal the House’s commitment to DOMA.
Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank, expressed some concern about the advisory group’s plans. “I hope that Speaker Boehner has a House floor vote on a resolution authorizing the House to retain counsel to defend DOMA. It would be good to have all the members of the House on record on this important issue,” said Whelan, who posts on constitutional issues for Bench Memos, the influential National Review blog.
Within the Republican Party, libertarians and some fiscal conservatives — like Daniels, who is exploring a presidential bid — question whether social issues constitute a worthy distraction.
Rick Santorum, the former Pennsylvania senator who has been a conservative leader on social issues, was the first in the pool of 2012 presidential hopefuls to ask the speaker to name legal counsel to “take up the cause and argue the cases” on behalf of the House.
Asked to explain why he jumped to the defense of DOMA, Santorum said he was worried by the muted GOP reaction. “With the exception of Newt Gingrich, I didn’t see anyone talking about the importance of DOMA and the importance of marriage: Why we need to stand up for it, and what conservatives should do to defend the law.”
Santorum said he wasn’t entirely surprised by the House’s slow reaction. “Whether you call for a truce, or whether you passively ‘support’ the party’s position on social issues, Republicans know that the political opposition — particularly regarding same-sex ‘marriage’ — is pretty rough.”
The former U.S. senator spoke from personal experience. In a 2003 interview, he suggested that a U.S. Supreme Court case, Lawrence v. Texas, which challenged a Texas sodomy law, could result in the normalization of once taboo forms of sexual coupling. His dire prediction ignited a media firestorm, and pundits later suggested that his comments on homosexuality contributed to his defeat in the 2006 Senate race.
That judgment has served as a warning for other GOP leaders who might be tempted to offer a robust discussion of the unintended consequences of legalizing same-sex “marriage.” Yet Santorum disputed the notion that he’s the “poster child for why you shouldn’t speak out on this issue. The important point is not the position I took, but the amount of resources the other side put on the table to advance its own position.”
The lesson from his own past struggles remains relevant today, Santorum suggested. While the House leadership should “authorize a team of lawyers to be advocates for the law in the courtroom, that decision must be backed up with vocal public support: Judges are not divorced from a strong expression of public opinion.”
Ignoring the Core Issue?
As the GOP continues to address hot-button issues like the defense of DOMA, party activists continue a debate over tactics: Should they confront the larger social consequences of dismantling traditional marriage or stick with a narrow discussion of the constitutional merits of the GOP position on DOMA?
When GOP presidential hopefuls issued their sound bites on the DOMA issue over the past week, they targeted the president’s “dereliction of duty” and skirted the core issue at stake: a redefinition of marriage that shifts the focus away from the procreation and formation of children.
“The president is replacing the rule of law with the rule of Obama. The president swore an oath on the Bible to ensure that the laws be faithfully executed, not to decide which laws are and which are not constitutional,” stated Newt Gingrich, former Speaker of the House and a recent Catholic convert.
In contrast, the U.S. Catholic Conference of Catholic Bishops has consistently taught that the marriage of one man and one woman is of vital importance to the nurturing and education of children and a key political priority — even during a time of economic crisis.
The Church’s ability to proclaim that message across religious and partisan lines has helped to harden public opposition to legal same-sex “marriage” from California to Maine. This week, Archbishop Edwin O’Brien of Baltimore helped lead a grassroots effort to stall passage of a bill legalizing same-sex “marriage” in Maryland.
Bishop Salvatore Cordileone, the chairman of the U.S. bishops’ ad hoc Committee for the Defense of Marriage, has stressed the social and political stakes involved in the battle over DOMA’s survival.
This week, in a column published in his diocesan paper, Bishop Cordileone, of Oakland, Calif., took aim at the Obama administration’s central justification for its new DOMA policy: “Obama claimed … that it discriminates against a sexual minority and is unconstitutional and irrational. Sadly, the Department of Justice had already submitted an apparently deliberately weak defense of DOMA — setting up its being overturned in the courts — by omitting the one argument that has convinced every court in which the argument was made: the connection between marriage and the good of children.”
Bishop Cordileone noted that a 2007 Maryland high-court decision underscored the power of this fundamental truth: “Marriage enjoys its fundamental status due, in large part, to its link to procreation. This ‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members.”
Is a Truce a Good Idea?
When Mitch Daniels first floated the notion of a “truce” on social issues, the proposal provoked some applause, but also a measure of skepticism. John McCormack, a blogger for The Weekly Standard, which first published Daniels’ proposal, questioned whether such a truce was needed to shore up support from political independents, who supposedly disagreed with the party’s pro-life, pro-marriage policies.
“Daniels said he didn’t want to do anything to ‘impede’ attempts to solve our fiscal problems. But it’s not clear that maintaining Obama’s policies on these issues for some period of time — which is what one assumes a truce means — would buy a Republican president any good will on fiscal issues,” wrote McCormack.
Republican commentators also have doubted the practicality of what could amount to a one-way truce — stalling the advancement of conservative social policy — while liberal activists press on with their own agenda to advance abortion and homosexual rights.
Hadley Arkes, a professor of jurisprudence at Amherst College and an architect of DOMA, challenged the notion that political leaders are overloaded and social issues should no longer be a priority.
“A truce on abortion or marriage? It can’t happen. Twenty-five years from now, the country won’t be recognizable if marriage is weakened or redefined,” said Arkes, also a recent convert to Catholicism. “We can chew gum and walk at the same time: We have to do something about a number of issues, from Obamacare and deficits to abortion and same-sex ‘marriage.’”
Some thinkers like Arkes characterize the administration’s action on DOMA as a political maneuver designed “to change the subject and create tensions among Republicans. The Republicans have the wind on their backs,” he said. “This is Obama’s attempt to break their momentum by fostering divisions.”
Phyllis Schlafly, who as founder of the Eagle Forum led the successful fight against the Equal Rights Amendment in the early 1980s, echoed Arkes’ judgment. She also acknowledged “the infiltration of libertarians in the conservative movement,” but predicted that 2012 GOP presidential contenders would not get far if they ignored the party’s commitment to traditional marriage and life issues.
The Republican base understands the vital importance of “recognizing and respecting marriage as a public matter,” said Schlafly. “No libertarian could become the GOP presidential nominee.”
Register correspondent Joan Frawley Desmond writes from Chevy Chase, Maryland.