The Offensive Defense - Defense of Marriage Act (DOMA)

This week, Speaker of the House John Boehner (R-OH) released the details of the House's intervention in defending the constitutionality of the Defense of Marriage Act (DOMA), responding to President Obama's announcement in January that the Department of Justice would no longer defend the law's constitutionality in court. DOMA's Section 3 defines marriage for the federal government as only being between a man and a woman, prohibiting legally married same-sex couples in states like Massachusetts and Iowa from accessing the 1,138 federal benefits of marriage (such as joint tax returns, Social Security spousal benefits, and exemption from the Estate Tax). Binational same-sex couples are also deprived of the opportunity to sponsor the foreign-born partner for a Green Card. This past July, a Federal District Court in Boston ruled the law unconstitutional based on the Due Process Clause of the Fifth Amendment. It reads: "No person shall...be deprived of life, liberty, or property, without due process of law." House Republicans will essentially have to argue that gays, lesbians, and bisexuals do not deserve due process; they are willing to spend a lot of taxpayer money to do it and the end result might actually end up being the exact opposite of what they hope to accomplish.

CONSERVATIVE MOTIVES: Last week's "defending marriage" hearing provided an introduction for what kind of defense the Republicans will mount. Rep. Trent Franks (R-AZ) has said he would support impeaching Obama and defunding the DOJ over the DOMA decision and he used last week's hearing to reiterate his rebuke of the President. Rep. Lamar Smith (R-TX) joined Franks in reiterating the lie that children are only best served by having opposite-sex parents, echoed by the testimony of two prominent anti-gay figures, Maggie Gallagher and Ed Whelan. Though the law cannot be defended without reinforcing animus against same-sex couples' relationships, almost every GOP potential presidential candidate has offered their own support for defending DOMA, including Mike Huckabee, Newt Gingrich, Michele Bachmann, Tim Pawlenty, Rick Santorum, and Mitt Romney.Boehner responded to a letter from House Minority Leader Nancy Pelosi (D-CA) that he even thinks funding should be reclaimed from the DOJ to support the House's defense of the bill, writing, "Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA. 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." And how much will it cost? The legal contract suggests a cap of $500,000, but a realistic assessment of DOMA's defense suggests the half million is more likely a minimum than a maximum.

THE SECRET CONTRACT: Without including Democrats in the negotiations, the House's Bipartisan Legal Advisory Group (BLAG) arranged a contract with former Solicitor General Paul Clement, who now earns $5 million a year at the law firm of King & Spaulding. The contract calls for a "blended rate" of $520/hour (as opposed to Clement's usual $900+/hr rates), but even at that rate, $500,000 will not go far considering there are 12 different cases pending against DOMA. Good thing the spending cap can be raised "by written agreement." In addition to the unrealistic cost estimates, the contract contains other concerns. Noticeably absent from the contract's nondiscrimination statement are protections for "sexual orientation" and "gender identity," despite the fact K&S boasts of their support for LGBT employees on their website. Even more conspicuous is a gag rule for all K&Semployees regarding advocacy for or against DOMA. According to the contract, "Partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation ... that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement." Pelosi is still waiting for answers to her many questions about how the contract was negotiated so that Democrats can provide proper oversight.

TIMES HAVE CHANGED: Since President Bill Clinton enacted DOMA in 1996, the political landscape and public opinion have shifted in support of marriage equality. Multiple recent polls have shown that a majority of Americans now support full marriage equality for same-sex couples. Five states and the District of Columbia now offer same-sex marriages, with several more offering same-sex civil unions and domestic partnerships. Plenty of Republicans like Dick Cheney and Meghan McCain have voiced their support of marriage equality. In February, a Maryland senator flipped to supporting same-sex marriageafter hearing the "troubling" testimony "demonizing" gay families. A Colorado senator who recently voted against civil unions is now reconsidering his position. No defection has been more remarkable than that of Louis Marinelli, who organized the National Organization for Marriage's (NOM) 2010 "Summer for Marriage Tour" and managed much of their online outreach. Now an open supporter of marriage equality, Marinelli is speaking out against NOM, and even though NOM is distancing themselves, they are also apparently taking legal action against him. While there is much to condemn Republican House leaders for about their defense of DOMA, their efforts could well have the opposite effect. By inviting the spotlight upon their animus, they will raise visibility for the continued plight of gay, lesbian, bisexual, and transgender Americans and likely promote the very trend of supporting marriage equality they oppose.