Rep. Frank hopeful Supreme Court will strike down Defense of Marriage Act

The Supreme Court could take a narrow approach in upcoming cases on same-sex marriage — and that’s just fine with outgoing Rep. Barney Frank (D-Mass.).

Frank, along with some other supporters of same-sex marriage, said he hopes the court will strike down the Defense of Marriage Act (DOMA), but doesn’t want the justices to go further.

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“I do not expect the Supreme Court to find in the near term that there is a constitutional right to same-sex marriage,” Frank said. “And that’s not what the LGBT groups are asking for. We’re asking for a recognition by the federal government of state marriages.”

Frank, the first openly gay member of Congress, retired at the end of the 112th Congress. The Supreme Court announced shortly beforehand that it would hear two cases on same-sex marriage — one challenging the Defense of Marriage Act (DOMA) and another challenging California’s statewide ban on same-sex marriage.

DOMA is a federal law that prohibits states from offering many legal benefits of marriage to same-sex couples. Couples can’t, for example, be treated as married when applying for federal aid programs, or for tax purposes, even if they were married in a state that recognizes their marriage.

So, by striking down DOMA, the Supreme Court would likely say that the federal government has no business requiring states to discriminate against certain couples.

But the California case goes further — if the court wants to strike down the state’s marriage law, known as Proposition 8, it could do so on the grounds that the Constitution includes a right for all couples to marry, regardless of their sexual orientation.

While that move would have the broadest historical sweep, Frank said he doesn’t think there are five justices who would agree that there is a constitutional right to marriage.

“The court is generally supposed to decide on narrow grounds, and secondly, I’m skeptical that the five votes are there,” Frank said. “It’s a very different issue. DOMA is very much within classic equal-protection doctrine. Finding a constitutional right for same-sex people to marry would go far beyond anything they’ve done before.”

After the Supreme Court announced that it would hear the California case, Frank said he hopes the justices will affirm a lower court’s narrow ruling, invalidating California’s ban without requiring same-sex marriage to be legal in every state.

“I would like it to be in the Constitution, yeah, but I don’t think five of those guys will agree with me,” he said. "But both the DOMA thing and the 9th Circuit’s Prop 8 decision … they’re asking the Supreme Court to affirm principles that are already decided.”

In part because it’s a federal law, DOMA is dominating the same-sex marriage debate in Congress. On Thursday — Frank’s last day in Congress — Democrats slammed House Republicans for continuing to fund the legal group that is defending DOMA before the Supreme Court.

The House’s rules for the 113th Congress reauthorize the Bipartisan Legal Advisory Group (BLAG) — the organization through which Speaker John Boehner (R-Ohio) has defended DOMA in the courts.

The BLAG has already spent $1.7 million defending DOMA, which the Justice Department ceased defending after President Obama and Attorney General Eric Holder said they had determined that the act was not constitutional.

Democratic members of the House LGBT Equality Caucus criticized Boehner’s decision to continue funding the legal organization.

“At a time when families are struggling to make ends meet and asking Congress to focus on jobs and the economy, all members should object to the use of taxpayer dollars to pay costly legal fees to make arguments that lack adequate factual or legal support, in pursuit of a law that is not worthy of a defense,” the Democratic lawmakers said in a statement.

House Democratic Leader Nancy Pelosi (Calif.) also criticized the House rules for a statement that says the BLAG represents the “institutional position” of the entire House.

“As House Democrats have time and time again made clear, the BLAG does not speak for all members of the House of Representatives and we will continue to oppose this wasteful use of taxpayer funds to defend DOMA,” Pelosi spokesman Drew Hammill said in a statement.