Washington, February 29, 2012 -

During a hearing of the House Appropriations Committee, Rep. Tom Graves (GA-09) questioned Attorney General Eric Holder about the Obama Administration's controversial contraception mandate.  The Attorney General told Rep. Graves the Department of Justice would defend the mandate, even after testifying that a government agency shouldn't be promulgating rules and regulations that violate the First Amendment.  This disclosure came after Mr. Holder testified that his department decided unilaterally that the Defense of Marriage Act, which was passed by Congress signed into law by President Clinton in 1996, was unconstitutional without a court ruling to that effect.   
Click on the image to view the full exchange:

Transcript:

REP. GRAVES: Well, in regards to the Defense of Marriage Act, your department made and you specifically, according to your letter, made the, I guess, the determination that it was unconstitutional, Section 3. Can you explain to us your rationale, your determination of what's unconstitutional and what's not?

ATTY GEN. HOLDER: Sure. I mean, the department, up until the time I made that determination, was defending the Defense of Marriage Act where there was precedent in a variety, a number of circuits. We were presented with a unique situation in the Second Circuit where there was not a precedent with regard to DOMA, and so we looked at it afresh and made the determination that given the history of discrimination that gays and lesbians had suffered over the years, that a heightened level of scrutiny was appropriate and in applying that heightened level of scrutiny we did not think that the statute passed constitutional muster. It was only as a result of getting into that Second Circuit environment, that Second Circuit case, that we changed the position that we had taken previously where we were defending DOMA in a variety of other places.

REP. GRAVES: So in essence without a court ruling you unilaterally determined what's constitutional and what's not, or your department reached that. Let me continue on, then. You know, the First Amendment, and I'm going to read it, says Congress shall make no law respecting an establishment of religion or prohibit the free
exercise thereof. Now, continuing on the same vein, in your opinion, does that apply to rules and regulations in the same respect -- does that same protection apply from agencies of the federal government?

ATTY GEN. HOLDER: The agency should not be promulgating religious ---

REP. GRAVES: Rules and regulations that would violate the First Amendment.

ATTY GEN. HOLDER: Yeah, I think -- yeah. Yes.

REP. GRAVES: So the recent ruling, and there are many who would claim that there's -- or the rule that came from the Department of Health and Human Services in regards to mandates, which many would say is a violation of religious liberties and the First Amendment, is your department going to defend that rule or not defend that rule?

ATTY GEN. HOLDER: Well, I think I'd respectfully disagree in the sense that I don't think that the rule that HHS promulgated was one that ran counter to the religious prohibitions that are contained in the First Amendment. And that's especially true, I think, when one looks at the compromise that the president and Secretary Sebelius put in place. And to the extent that that action is challenged in court, I would expect that the Justice Department would defend what I guess is in place, which would be that compromise.

REP. GRAVES: So it would defend the agency or defend the ruling?

ATTY GEN. HOLDER: Yeah, I'm not sure exactly who would sue but my guess would be that we would be in defense of that compromise.

Background:

The compromise Mr. Holder cited was announced by President Obama on February 10, 2012.  The mandate requires all employers to provide female contraception as part of their health care plans, with the cost of the contraception coverage to be incurred by the insurer if a given employer objects on religious grounds.  Some religious groups, like the U.S. Conference of Catholic Bishops, have rejected the compromise, saying it still forces them to violate their conscience by providing, even at no cost, a benefit to their employees which violates their religious doctrine.