During a House Judiciary Committee hearing Tuesday, freshman GOP Congressman Trey Gowdy of South Carolina questioned why Attorney General Eric Holder should apply a higher level of scrutiny to same sex marriage laws than to laws concerning inter-family marriage and polygamy.
In February, President Barack Obama decided that the Defense of Marriage Act, a Clinton-era law that restricts the benefits of marriage to a man and a woman, merited heightened scrutiny from the the courts and ordered the Department of Justice to stop defending it.
According to the president, because the law discriminates on the basis of sexual orientation, it must be "substantially related to an important government interest" rather than merely "rationally related to a legitimate government interest."
"Would you agree with me that the rational basis test is the appropriate test to be used with respect to consanguinity, the marrying of family members?" Gowdy asked Holder, the main legal adviser to the federal government. "That’s the appropriate test, right? Rational basis. You’re not arguing for a heightened level of scrutiny on whether or not cousins can marry each other."
"No, I would not argue that," he responded. "I don’t know if there’s law on that, but again off the top of my head, I’m not sure that you would need heightened scrutiny standard in that regard."
"Alright, and we don’t need intermediate or heightened scrutiny with respect to polygamy, right?" Gowdy continued.
"I would think not," Holder responded.
After Obama announced the Justice Department would not defend legal challenges to the Defense of Marriage Act, House Republicans, led by Speaker John Boehner (R-OH), hired former U.S. solicitor general Paul Clement to defend it. The law firm hired by Republicans to defend the legislation later backed out of the case, leading Clement to resign from the firm.