House DOMA defense cost triples, to $1.5million

From SFGate:

House Republicans, if you recall, decided that since the Justice Department and President Obama refused earlier this year to defend DOMA (calling the statute unconstitutional), Republicans would hire outside counsel to do so. The proliferation of court cases ensured this outsourced defense would get expensive. DOMA is expected to arrive at the Supreme Court within a couple of years. With same-sex marriage now legal in six states and the District of Columbia, DOMA conflicts are blossoming in areas of tax law, immigration law, Social Security and the like....

[House minority leader Nancy] Pelosi today issued this statement on the GOP contract: “It is absolutely unconscionable that Speaker Boehner is tripling the cost for his legal boondoggle to defend the indefensible Defense of Marriage Act. At a time when Americans are hurting and job creation should be the top priority, it just shows how out of touch House Republicans have become that they would spend up to $1.5 million dollars to defend discrimination in our country.”

DOMA defense update

Chris Geidner fills us in on the recent motion filed in the first DOMA case to be defended by the Congressional Republican caucus.

Background: the Obama Administration has decided that the Dept of Justice cannot defend DOMA, the defense of marriage act that renders my legal marriage federally invisible, because they believe it is unconstitutional. However, the law remains on the books and is still in force. Congressional Republicans have decided to spend your dollars on a private attorney to defend the indefensibly hate-filled DOMA. (Meanwhile, a repeal bill entitled the Respect for Marriage Act is moving slowly through Congress).

This particular DOMA case is of a legally married California woman, Karen Golinski, who has sought health insurance benefits for her wife from her employer, ironically the 9th Circuit Federal Court. The Court has actually supported Golinski but the Administration's Office of Personnel Management has refused to comply based on DOMA.

Now the case is a lawsuit, and Paul Clement, the attorney hired by the Republicans, will vigorously defend DOMA and attack same sex couples.

Treating us as second class, according to Clement, is justifiable because (1) gay marriage is new, (2) the whole procreation thing (he goes into Gallagher territory) and (3)

Finally, it bears emphasizing that DOMA’s effect is limited. DOMA only defines marriage for purposes of benefits—and burdens—, created by other federal laws. … Congress "did not penalize" same sex couples; it "decided not to offer them a special inducement."

I also find it interesting that he throws in a line about "political power" of gay rights supporters. You may recall that in the Prop8 trial, the relative powerlessness of LGBT people was contested.

Here's the ultimate test of power: do we have enough power to protect ourselves politically without the courts? do we have enough power to ensure our EQUAL TREATMENT under the law? DOMA and Prop8 prove that we so not.

There is no justification for DOMA and the deliberate harming of legally married same sex couples. None, except religiously-inspired bigotry, ignorance, hate and fear.

All of which will no doubt be given a glossy paint job by Attorney Paul Clement.

More commentary on DOMA defense and the law

Dale Carpenter looks at evolution of the legal profession on gay rights

[King & Spalding's] its reversal suggests the extent to which gay men and lesbians have persuaded much of the legal profession to accept the basic proposition that sexual orientation is irrelevant to a person’s worth and that the law should reflect this judgment. The decision cannot be dismissed simply as a matter of political correctness or bullying by gays.

Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.

But there's no lack of a defense.

[T]he House will have excellent counsel on its side: a former solicitor general who resigned from King & Spalding to protest its decision. The world of legal professionals is still a diverse one where basic values collide every day. Respectable constitutional arguments for the Defense of Marriage Act will surely be made — but grounded in ideas, one hopes, not contempt.

It's hard to see what those ideas will be. Kay Kendall:

In order to justify the defense of a law, it must be possible to identify some principle that deserves to be vindicated, and here, there simply is none.

DOMA was passed in order to express moral disapproval of LGBT people. It does not embody conflicting principles that need a full-throated defense on both sides to produce a just and fair result. The sole purpose of DOMA is to discriminate against same-sex couples. It perpetuates harm against an underrepresented community and singles out certain families for unequal treatment from their government. No self-respecting lawyer or law firm should be willing to tarnish their reputation by defending such an appalling law. King and Spalding's decision to withdraw was a turning point in this struggle because it symbolized a shift in power between those who understand that simple truth and those who do not.

Of course there was pressure brought on King and Spalding. Economic pressures are brought all the time -- the anti-equality guys played that card quite aggressively during the Prop8 campaign, where they made many threats. But not least of that pressure was brought from its own staff and associates, appalled that the firm was basically attacking its own, dismayed that the government contract illegally presumed to gag them:

“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.”

There's no doubt that DOMA will receive a robust defense from the right wing. What's doubtful is that any rational legal basis for discrimination will be advanced sufficient to persuade a reasonable jurist.

Law firm pulls out of DOMA defense (updated)

King and Spalding, the supposedly LGBT-friendly law firm that was hired to defend DOMA, has pulled out of the case. Attorney Paul Clement has quit and will still defend DOMA but with another firm. The Huff Po tells us,

"Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act," King & Spalding chairman Robert D. Hays, Jr. said in a statement. "Last week we worked diligently through the process required for withdrawal."

“In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate," he continued. "Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created."

Shortly after the firm announced that it would no longer take the case Paul Clement, former solicitor general under President George W. Bush and the partner charged with leading the firm's defense, submitted his letter of resignation to Hays...

It could be that the agreement that muzzled everyone else in the firm on the subject of DOMA was too much. Also, for a firm that clearly prided itself on diversity, it was pointed out that attacking a community they purport to support was not going to go down well in the future.

In any case, DOMA will still have its defense, from an ace attorney who apparently can't wait to attack the rights of his fellow citizens. On your dime.

Update: Metroweekly points out the facts.

Here, the facts remain that Clement signed the initial contract on behalf of King & Spalding, questions were raised about the content of that contract, the ethics committee chairman moved to withdraw the firm from representation and Clement left the firm.

And over at the HuffPo, reports of conflict within the firm itself over its contract. Remember, this is a gay-friendly company with lots of gay employees.

A source at the firm described the “mayhem” that ensued after employees learned King & Spalding agreed to defend DOMA.

“Management was divided, people were threatening to quit,” the source said. In addition, it was unclear if members of the firm’s Diversity Committee had been consulted ahead of time about taking on the case.....

Particularly troublesome for companies, according to the source, was that many of them have contracts with King & Spalding that provide protections against non-discrimination for sexual orientation. The contract with the House General Counsel, however, did not include sexual orientation or gender identity protections.

While it's a convenient political cover to claim the big mean gays threatened the firm, waving their feather boas, there are reasonable interpretations that they didn't like the ethics of the muzzle clause,that their employees weren't happy with a firm that was advocating to make them 2nd class, and that the potential loss of business from the LGBT community and friends wasn't worth it.