March 28, 2012
By Scottie Thomaston
Next month, the First Circuit Court of Appeals will hear a challenge to the Defense of Marriage Act, a law that was passed in 1996 and has faced legal challenges beginning at the time Massachusetts legalized marriage for gay and lesbian couples in 2003. It’s the first DOMA case to reach an appeals court and could help push the challenge to the law’s constitutionality to the Supreme Court.
The Republican-led House is defending the law since the Department of Justice concluded that it is unconstitutional and withdrew their defense. The House, and particularly Speaker John Boehner, is facing tough criticism from conservatives and from Democrats. House Democrats want to know where the money is coming from:
Subcommittee ranking member Mike Honda (D-Calif.) questioned CAO Daniel Strodel as to where he had gotten the funds that were later transferred to the House’s Office of General Counsel.
Strodel testified that the money had come from the House Salaries, Officers and Employees account. The Department of Justice had not contributed any funds to the House’s defense of the law.
Honda questioned why, in a time of increasing congressional fiscal austerity, the House could find funding for an “unconstitutional law that separates all of us.”
House Republicans have received $750,000 so far to defend DOMA and the cap has been increased to $1.5 million. House leadership isn’t saying whether that cap will be reached or not:
When asked if the legal costs were likely to exceed $1.5 million, Kircher remained cagey, saying he was beholden to his client, House leadership.
“It’s hard to know how much we will ultimately spend because it’s hard to know how this litigation ultimately plays out,” he said. “Obviously the name of the game here is to get some case before the Supreme Court and get a resolution on this issue.”
And transparency has been an issue throughout this endeavor. It’s not just that House Democrats are concerned and trying to make a political issue out of it. There is a real, palpable sense that House leadership has been trying to defend this law as quietly as possible with no fanfare. And there is confusion over the contracting process:
House Republicans have still not explained where the money they plan to use to pay Bancroft will come from.
“The entire contracting process has lacked any semblance of transparency,” said the Democratic members of the House Administration Committee in a statement on Tuesday. “Our letters of warning and our questions about how any of the numbers were reached and where the money would come from have gone unanswered. Now, we find that Speaker Boehner’s hand-picked lawyers have exhausted the half-million dollars we were told would be the total cost and they need an additional $1 million dollars — or 300% of the original contract, to continue the work.”
Even conservative groups and identified hate groups are questioning the transparency of Boehner’s leadership on this issue and wondering why their “allies” in Congress aren’t speaking up:
“They hired Paul Clement, and they think their job is done. While the Obama administration ignores DOMA, Speaker Boehner has forgotten that the checks and balances also include Congress,” said Tom McClusky, senior vice president of the Family Research Council.
The council sees a challenge of the law’s definition of marriage as “a legal union between one man and one woman” as a threat to religious freedom — a potent political argument Republicans used to criticize the Obama administration’s recent requirement that health insurers, including those of religiously affiliated organizations, provide contraceptive coverage.
“I wish that our allies would do more. They are being intimidated into silence by Republican leaders,” McClusky said.
The House won’t even take a vote to affirm the Defense of Marriage Act even though in 1996 it passed with bipartisan support. Brian Brown from the National Organization for Marriage commented:
Last year, conservative lawmakers raised the possibility of a House vote on the merits of the constitutional issue, said a GOP aide familiar with the discussions. But party leaders said they preferred to pursue the legal option, the aide added.
“There was discussion of a reaffirmation of DOMA,” said Brian Brown, president of the National Organization for Marriage. “But that wouldn’t do anything legally. DOMA is already the law.”
With challenges to the law piling up and decisions forthcoming over the next several months, this questioning will only increase.