A federal magistrate judge has permitted Congress to intervene in a case challenging the Defense of Marriage Act as unconstitutional. Southern District Magistrate Judge James C. Francis issued a 12-page order and memorandum yesterday saying Congress has a right to intervene in Windsor v. United States, 10 Civ. 8435, now that the U.S. Justice Department has said it will no longer argue that the act is constitutional.
Attorney General Eric Holder notified Speaker of the House John A. Boehner, R-Ohio, in February that his lawyers would “cease defending” §3 of the act because its refusal to recognize same-sex marriages recognized under state law violates the equal protection clause. The House of Representatives Bipartisan Legal Advisory Group (BLAG), splitting along party lines, then voted to intervene, and it hired former U.S. Solicitor General Paul D. Clement, then of King & Spalding but now of Bancroft in Washington D.C., to defend the law.
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