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Ghostwriter: James Stranko Federalism and Public Policy Professor Christopher Sands From Chief Counsel, Office of the

e General Counsel Focus on the Family To The Honorable John Boehner: The Defense of Marriage Act is Under Attack, and is our last defense against nationwide redefinition President Obamas Department of Justice has unilaterally stepped beyond its constitutional authority and duty in ceasing to argue for the Defense of Marriage Act in federal courts. As House Majority Leader, you will likely agree that it is your duty to step in and defend this statute that our president is unwilling to defend. Nonetheless, given the rise of the Tea Party movement and primacy of the nations ruinous economic situation in the eyes of voters, we can understand what a dilemma this is for you and your colleagues in Congress. The Defense of Marriage Act set the bar for our national fight against same-sex marriage. Section One defined and defended our Judeo-Christian conception of family and marital commitment. Section Two rendered rogue states ineffective at imposing their redefinition of this false marital contract on other states. Section Three, meanwhile, created a federal standard for the recognition of marriage between opposite-sex couples. The law has been effective since its bipartisan passage in 1996 and is now under attack from an administration that has ceased to defend the law before the myriad of legal challenges it is facing in our Federal Court system. We feel that, while these cases are not necessarily impossible to win, the Presidents decision not to defend the law sets the tide against our case. Given the demographics of support for same-sex marriage and the range of activist judges that have thrown their support behind the anti-marriage cases before them, we feel this is the moment for a new approach and respectfully outline our solution below. Our main legal counsel recently concluded that Section Three of DOMA would likely be ruled unconstitutional. Furthermore, it is likely that voters will not want a social issue distraction from your work on reducing the deficit, quashing entitlement-fueled collective bargaining, and keeping taxes to a minimum. We feel we have a solution that plays to your partys social conservative, while appeasing the more moderate caucus and making the current administration look politically advantageous and socially radical. This solution invokes your partys strong commitment to states rights and federalist solutions to national problemsrecognizing the social and political diversity of our country and making certain that this ruling does not impose a national right to same-sex marriage on states. Respectfully, James Bopp, Esq.

The Demographics of Support Are Against Our Cause

Source: Nate Silver, FiveThirtyEight Polling Composite | Figures are national composites We believe that same-sex marriage has already reached a disturbing level of acceptance in our countryparticularly amongst our youth. Naturally, this is distressing for us. They view homosexuality as a normal behavior, and one that is worthy of respect, support and equality under the law and the view of society. This general acceptance is why we feel we must so assiduously continue our fight. While we should exhaust all of the options we have to block Section Three from being struck down, we must recognize that there are more effective ways to promote a pro-marriage, profamily agenda outside the realm of pending litigation. This will require you to push a strong public relations agenda to promote your partys view of traditional marriage ahead of the electionswithout looking like you are trying too hard to focus your energies away from the budget. In the meanwhile though, we need to focus on the states-rights and federal nature of marriage and work on solidifying the opposition to same-sex marriage that has been pervasive at state level. We then need to slowly and surely build a base of support, state-by-state, for 2012 ballot initiatives defining and protecting marriage in the remaining states where the question has not yet been broached. The poll numbers in the chart above show that our ability to pass plebiscites against same-sex marriage is shrinking every yearparticularly in the remaining states that do not define marriage traditionally. If we are to achieve airtight majorities in these votes state by state, the GOP must make the defense of marriage a clear priority amongst the

field of potential candidates for the Republican nomination. We must also make clear to the public that this challenge to DOMA is not a natural undoing or a recognition of its unconstitutionalityrather it was the result of collaboration of the small, well funded homosexual political lobby that increasingly defines President Obamas radical social agenda.

Using Federalism and States Rights to Our Advantage


The states have been a potent laboratory for marriage law definitions throughout the years, and in the case of same-sex marriage there has been surprisingly quick agreement on principles. Views against same-sex marriage, and the ballot initiatives and legislative action that accompany them, swept the country in a period of only ten years. Beginning with broad bipartisan support to protect marriage at a federal level via Defense of Marriage Act after the Hawaiian Supreme Court fired the opening shot in the national debate in 1996, the issue weaved its way through states shortly thereafter. Then, to show the level of state-federal coordination, the 2004 presidential election cycle saw the largest number of ballots approved (11 states) while at a national level President George W. Bush was campaigning on an ultimately defeated National Marriage Amendment. The issue is a classic example of federalism at work: a state court guaranteed a right that the federal government was not willing to accept. U.S. Congress then reacted with a bill creating a federal definition of marriage. States began individually to take up the task of amending their laws to protect the traditional definition of marriage, which ultimately led the federal government to moot an unsuccessful national constitutional amendment to settle the question. In adjudications such as the homosexual lobbys suit against Proposition 8 and the will of the people in California, the federal judiciarys decisions have weighed on the State Supreme Courts ability to define constitutionality. Forty-one states have constitutional amendments or statutes that bar same-sex marriage, and many of these states also ban other types of unions that give similar marriage benefits to same-sex couples. This means that there will be a limited effect of having federal recognition of same-sex marriage even with DOMA overturned. These amendments have been implemented through a variety of meansfrom state popular referenda (such as the one behind Proposition 8 in California) to congressional action. No matter how the bans have been enacted the outcome is clearAmericans have consistently supported protecting marriage when given the opportunity. Only in one instance, Connecticut in 2008, have voters failed to protect marriage when given the opportunity at the ballot box. The graphic on the following page gives a visual representation of the scope of same-sex ballot initiative success in the United States.

CHART: Same-sex marriage ballot initiatives have been very successful

Bright red represents states that have passed ballot initiatives against same-sex marriage. Light red (Maine) represents the referendum rolled back the legislative approval of same-sex marriage from the previous year. Light blue (Washington State) represents a ballot initiative that gave same-sex couples all of the rights of marriage under domestic partnership registration. Dark blue (Connecticut) represents a ballot initiative to ban same-sex marriage that was defeated. Gray states are states that have not yet addressed same-sex marriage via ballot initiative, although a number have prohibited it by statute or legislative amendment.

Article IV, Section I of the U.S. Constitution, better known as the Full Faith and Credit Clause is a major concern for the application of same-sex marriage across the country. As you will know, the act requires states to respect the public acts, records and judicial proceedings of every other state. Still, federal jurisprudence has shown that this standard does not always apply equally to family law. For instance, interracial marriage was not recognized by many states before the application of Loving vs. Virginia, but the ban on interracial marriage prohibitions arising from this rule arose from the Equal Protection Clause, not the Full Faith and Credit clause.

The Federal Government has long left the nuts and bolts of marriage law to the states, only intervening in cases of serious national civil rights interests like the landmark Loving v. Virginia case which struck down bans on interracial marriage across the country. Same-sex marriage activists are counting on a Loving v. Virginia-type ruling to be enacted by the Supreme Court but the ruling has not stood up to analysis when challenged in several states, including in New York with Hernandez v Robles. As supporters of traditional marriage, our worst nightmare is a Supreme Court decision that declares DOMA invalid on the basis of the Full Faith and Credit clause because this would mean that all states would have to recognize same-sex marriages performed elsewhere. A federal court in Oklahoma has already applied this standard to same-sex adoptions performed elsewhere to a couple moving to the state (Finstuen v. Crutcher 2007). If we are to defend DOMA to the Supreme Court, our main counsel feels it is highly unlikely, given the composition of the cases, that we will prevail. If we are not to defend the laws and let the lower court rulings stand, we stand a chance of limiting the national damage these rulings can cause to the districts where they will be applied (districts which, by and large, are the ones with states that have favorable same-sex marriage climates anyway). The table below shows the potential district impact of the cases.

Pending cases where the Defense of Marriage Act is being challenged Potential Impact DoJ at Current Status Bishop v. United States, No. 04-848 N.D. Okla. Commonwealth of Massachusetts v. U.S. Dept of Health and Human D. Mass/1st Cir Services, et al., No. 09-11156, on appeal, No. 10-2204, consolidated with (ME, MA, NH, Gill v. OPM, Nos. 10-2207 & 10-2214. PR, RI) Gill, et al. v. Office of Personnel Management, et al., No. 09-10309 (D. D. Mass/1st Cir Mass.), on appeal, Nos. 10-2207 & 10-2214, consolidated with Commonwealth of Massachusetts v. HHS, No. 10-2204. Golinski v. Office of Personnel Management, No. 10-00257 N.D. Cal. Hara v. Office of Personnel Management, No. 09-3134 Fed. Cir. (DC) Lui v. Holder, No. 09-72068 9th Cir. (AK, AZ, CA, GU, HI, ID, MP, MT, NV, NMI, OR, WA) D. Conn. 9th Cir. 9th Cir. S.D.N.Y.

Pedersen et al. v. OPM et al., No. 10-CV-1750 Torres-Barragan v. Holder, No. 10-55768 Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 Windsor v. United States, No. 10-CV-8435

Our Strategy and Recommendations


What we need to work on, then, is: Limiting the damages of the Department of Justices decision to the districts with current court cases while the demographics are still in our favor Funding anti-marriage redefinition campaigns via state officials so that the public perceives the Republican Party as strong on the issue Launching a large campaign during the elections accusing the Obama administration of redefining marriage for the country unilaterally so we are seen as the victims in this fight

Therefore, we advise the Republican House leadership to: Drop its defense of DOMA before these federal cases as soon as it becomes apparent that the case is no longer on our sidemainly to avoid charges of fiscal profligacy and to concentrate resources elsewhere Reintroduce Section Two of DOMA as a standalone bill and invoke the jurisprudence of the Full Faith and Credit Act as support Begin funding pro-marriage referenda in key states (Pennsylvania, North Carolina, Minnesota, New Jersey, Maryland, Iowa and Indiana) for 2012. These states, coincidentally, are states that for the most part voted for Barack Obama by narrow margins in 2008 and where the campaign may be weakest in 2012 Infuse these political talking points with references to Obamas unilateral radical social agenda while staying above the fray and holding your deficit-reducing credentials as primary

We believe that this is the most credible, feasible strategy for your party to beat back the prospect of nationwide same-sex marriage while staying on message about fiscal health and reform. While this is a complicated short-term decision, by 2012 your party will be on the high ground again with values voters and deficit voters alike by staying true to the commitment you made to combat the radical Obama agenda.

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