The House has picked another losing proposition to support. Its Republican leadership moved to intervene in a lawsuit against the federal government brought by 81-year-old Edith “Edie” Windsor for failing to recognize her marriage to her spouse and partner of 44 years, Thea Spyer. They also want the Department of Justice to pay them to defend the Defense of Marriage Act (DOMA). The cost to taxpayers will be $500,000 to start. At least they have a budget.
Speaker Boehner wrote to former Speaker Pelosi, saying, “Had the BLAG [Bipartisan Legal Advisory Group] not taken this action, the constitutionality of the law would have been determined by a unilateral action of the president. By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality,”
The BLAG is comprised of the top three House Republicans: Speaker Boehner, Majority Leader Cantor (R-VA) and Majority Whip McCarthy (R-CA) plus the top two House Democrats: Pelosi and Minority Whip Hoyer (D-MD). Not surprisingly, the group’s three Republican members voted in favor of House intervention to defend the law, while the two Democrats voted against intervening.
As to the Republican budget for court costs, Boehner wrote to Pelosi that he intends to offset the cost of a private counsel with reductions from the Justice Department’s budget. “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA,” Boehner wrote. He did not say how that was going to be done. However, the government will not spend more than $500,000 for all legal services performed in defense of DOMA. Of course it does not rule out a new contract if the ceiling is reached. You have to start somewhere.
Back in February President Obama directed the Justice Department to stop defending DOMA. Attorney General Eric Holder said, “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases.”
The Defense of Marriage Act, Public Law 104 -199, “An act to define and protect the institution of marriage says “…the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It also describes the scope: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
The fact that tribes control their own domestic relations is a function of what is called the sui generis [of its own kind] character of federal Indian law. Most tribal law doesn’t address the issue. The Navajo and Cherokee tribes prohibit same-sex marriages. The southern Oregon coast Coquille Indian Tribe adopted a law recognizing same-sex marriage in 2008, but Defense of Marriage Act of 1996 does not and I digress.
The firm of King & Spaulding will be receiving a “blended rate” of $520 per hour, which is somwhat low, considering that the firm’s top attorneys receive as much as $900 per hour. But, that’s our tax dollars at work to support another House of Representative’s loser, defending DOMA.