Washington (CNN) - House Speaker John Boehner announced Friday that he's taking action to have Congress defend the federal law barring recognition of same sex marriage, after the Obama Administration announced last month it no longer will.
"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 consistent with our Constitution," Boehner said in a written statement released on Friday.
Boehner said he's taking the procedural step of asking the "Bipartisan Legal Advisory Group" to direct the House's General Counsel to officially go to court to defend Defense of Marriage Act, which Congress passed in 1996. The bill was signed into law by President Bill Clinton. In addition to banning federal recognition of same-sex marriages it says states cannot be forced to recognize such marriages from other states.
By going through the advisory group, Boehner avoids holding a full House vote to direct the House's General Counsel to defend the law.
House Democratic Leader Nancy Pelosi immediately denounced the move, calling the law "discriminatory."
Pelosi said getting Congress involved takes its focus off jobs and the economy and wastes resources. "This decision will burden the staff and monetary resources of the Office of the General Counsel, and given the complexity of these cases and the number of courts involved, it is likely this will cost the House hundreds of thousands of taxpayer dollars."
The advisory group that Boehner will convene soon is made up of the top five House leaders from both parties - Boehner, Majority Leader Eric Cantor, GOP Whip Kevin McCarthy, Democratic Leader Nancy Pelosi, and Democratic Whip Steny Hoyer. Action by the group requires a majority of its Members' approval to move forward, so even though Democrats disagree with Boehner's decision to intervene in the case they don't have the ability to block the action.
In February President Barack Obama ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, according to a statement Wednesday from Attorney General Eric Holder.
"The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said.
The key provision in the law "fails to meet that standard and is therefore unconstitutional."
"Given that conclusion, the president has instructed the (Justice Department) not to defend the statute" in two pending cases in New York, Holder said. "I fully concur with the president's determination."
Obama has previously expressed his personal opposition to the Defense of Marriage Act but had never stated an opinion relating to its constitutionality.
Republicans opposed the White House's decision last month, calling it a distraction at a time when they said the focus needs to be on the economy. But the GOP also charged that the Administration had a duty to uphold the law even if it disagreed with it.
While Speaker Boehner said he wants Congress to step in to defend the law, he again noted Friday that he thinks Congress' should be dealing mainly with economic issues. "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.
The administration had a March 11 deadline to respond to two lawsuits against the measure in New York. The 2nd U.S. Circuit Court of Appeals - which includes New York - is the only federal circuit to have never decided the basic legal question of whether a law discriminates against gay men and lesbians. The same deadline would apply to Congress to notify the court about its intention to defend the law.
In July, a federal judge in Massachusetts became the first to rule the law unconstitutional. U.S. District Judge Joseph Tauro said that "irrational prejudice plainly never constitutes a legitimate government interest."
Courts in California are considering a legal challenge to Proposition 8, an initiative narrowly approved by that state's voters in 2008. It defines marriage as a union between a man and a woman.
Same-sex marriage is legal in five states - Massachusetts, Connecticut, Vermont, Iowa and New Hampshire - and in the District of Columbia. Civil unions are permitted in New Jersey.