House GOP Silent on Marriage Law They're Paying To Defend

Rebecca Kaplan

As attorney Paul Clement took to the Supreme Court to defend the Defense of Marriage Act on behalf of House Republicans, the lawmakers who hired him to do so stood silently by.

It was the right thing to do, many Republican strategists say, to avoid distracting from the GOP’s core economic message.

But some members of the House Republican conference thought their GOP leaders should have done more to publicly stand behind an effort important to social conservatives. 

“The silence was absolutely deafening and very disappointing to the millions of value voters that are in the party,” Kansas Rep. Tim Huelskamp told National Journal.

House Speaker John Boehner, R-Ohio, Majority Leader Eric Cantor, R-Va., and Majority Whip Kevin McCarthy, R-Calif., represent the majority of the five-member Bipartisan Legal Advisory Group, which hired Clement to defend the 1996 law before the Supreme Court after the Obama administration instructed the Justice Department to cease defending its constitutionality. Despite a high-profile case and hoards of people demonstrating both for and against gay marriage in Washington, the three have maintained a low profile, with nary a statement (or press release) on the issue.

The vocal lawmaker has been House Minority Leader Nancy Pelosi, D-Calif., who also sits on BLAG, and disagreed with the decision to hire a lawyer on behalf of the body to defend DOMA. After attending the oral arguments on Wednesday, Pelosi returned to the Capitol in the midst of a two-week congressional recess, where she blasted House Republicans for being “just plain wrong” for defending the law.

“I think their behavior has been not a model for the future, let's put it that way,” Pelosi said when asked about the silence from the GOP leadership. “It’s really disappointing and unworthy of a subject that is going before the Supreme Court of our country that has such an impact on not only these marriage equality families but also on our whole country as to who we are.”

Pelosi was the most vocal Democrat Wednesday, as the White House also demurred from saying much about the arguments or predicting the outcome.

Pelosi especially took issue with the $3 million spent defending the law in court even though the BLAG had only agreed to spend $500,000. Democrats on BLAG were not consulted about the decision to raise the amount of the contract with Clement’s firm, Bancroft, the California Democrat said.

“Three million dollars speaks very loudly,” she said of the House GOP position.

But for a party undergoing a debate about how to broaden its appeal in the future, a low-key approach may have been the best strategy to avoid the appearance of intolerance, especially when the decision is in the hands of the Court now and public pronouncements would likely have no effect.

“You don’t want to insert yourself in something that you end up burning political capital on and the court decides by the wave of a wand,” said GOP strategist Ron Bonjean.

Another strategist, Rick Wilson, noted that the issue is likely to fade from public view as the court moves from oral arguments to closed-door deliberations for several months. “It’ll drop off the public radar screen, so why extend that?” he wondered. “Why drag it out?”

The GOP is not on the same side as public opinion, which is rapidly shifting to favor same-sex unions. The Republican leadership seems to recognize that, hammering away at less politically sensitive issues like jobs, spending, and the healthcare law rather than social issues.

“I don’t think that speaking out against gay marriage is part of the strategic communications plan for most members of the House,” said John Feehery, who served as a spokesman for former House Speaker Dennis Hastert.

Even Boehner’s statement when he convened the BLAG to discuss whether the House should pay to defend DOMA indicated not an enthusiastic commitment to the legislation, but rather regret that it distracted from other priorities.

“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 March 2011, not long after the administration announced its intent to stop defending the law in court. “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 constituent with our Constitution,” he said.

Boehner isn’t the only one eager to avoid embroiling his party in divisive social issues. Republican National Committee chairman Reince Priebus told USA Today this week that the GOP shouldn’t “act like Old Testament heretics” on the issue. An “autopsy” report of the 2012 election issued by the RNC last week warned that younger voters were being turned off by the attention to issues, and that Republicans should change their tone.

But more socially conservative lawmakers, such as Huelskamp,say that’s just pressure from Washington elites. He said that the party should attract minority voters by sticking to its convictions on social issues, where they have some overlap with black and Hispanic voters.

Strategists say the leadership has played this correctly. “If the Republican Party is smart…we’ll focus on the message of growth and opportunity. That’s what moves people right now. That’s what people are focused on,” said Wilson.