Republican House Speaker John Boehner wants the Department of Justice to reimburse the House for the hundreds of thousands of dollars it may need to spend in order to defend in court a federal traditional marriage law that the Obama Administration has refused to protect.
"The burden of defending DOMA (Defense of Marriage Act), and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House," the Ohio congressman wrote in a letter, published Monday, to House Minority Leader Nancy Pelosi (D-Calif.)
"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."
The Department of Justice defended DOMA – which defines marriage as a union between a man and a woman for the sake of federal laws and benefits – in federal court for two years before announcing in February that it would no longer assert the constitutionality of the law.
In a statement, the DOJ reasoned that “much of the legal landscape has changed in the 15 years since Congress passed DOMA” and cited the repeal of the military’s “don’t ask, don’t tell” policy that banned open homosexuality, as well as the rulings of several lower courts that determined DOMA to be unconstitutional.
Stepping up to fill the void, Boehner announced last month that the House would take action to defend the marriage law, contending that its constitutionality should be determined by the courts and not by the president.
Opposing the House’s move, Pelosi questioned the cost of getting involved in such divisive litigation in a March 11 letter to Boehner.
In his response, Boehner said the decision was “necessitated by the extraordinary announcement” by the DOJ to stop defending DOMA and the House taking action ensures that the courts will decide the constitutionality of the marriage law.
He also noted that the costs associated with the House defense would be high because the DOJ let go of its responsibility when most of the cases against DOMA were in the middle of lower court litigation and not ripe for Supreme Court review.
Pelosi's spokesman, Drew Hammill, denounced Boehner’s request for reimbursement, calling it a swindle.
"Speaker Boehner is spending half a million dollars of taxpayer money to defend discrimination," Hammil told news website Talking Points Memo.
House Republicans have chosen Paul Clement, who served as solicitor general under former president George W. Bush, to defend DOMA in future legal battles. According to Talking Points Memo, Clement’s fees would cost $520 per hour, totaling up to $500,000, according to a contract signed with the General Counsel of the House and the House Administration Committee.
Bruce Hausknecht, a judicial analyst of Focus on the Family's Citizen Link, countered, "Marriage is worth the best defense that we can give." He also said of DOMA, "This is a validly enacted law for which there are many rational reasons to uphold it."
Still, Hammill pushed back to the Republicans' rally cry for deep cuts to government spending and charged that they should pay for the defense fees themselves. "If Republicans were really interested in cutting spending, this should be at the top of the list," he asserted.
But Hausknecht believes complaints about the defense fees are "a complete and utter smokescreen," noting that Democrats' "sudden" interest in cutting spending in a three-month stalemate on the national budget.
President Barack Obama ordered the Department of Justice to stop defending DOMA in February after it was challenged in a number of lawsuits including the cases of Gill v. Office of Personnel Management and Massachusetts v. United States.
While the DOJ cannot, by executive order, intervene legally, Hausknecht said DOMA is still a federal law which must be followed and enforced.
"It makes perfect sense for the House to charge the DOJ for the job they would not do," he told The Christian Post.
Boehner's press secretary, Michael Steel, agreed. "Ideally, DOJ would defend the law, which was passed by Congress and signed by the President," he said. "Since they won't, we have to. So it's perfectly reasonable to ask them to pay."
Conservatives approve of Boehner's repayment proposal as well as his decision to hire the Bush administration lawyer.
Alliance Defense Fund Senior Counsel Brian Raum commended the decision to choose Clement as lead counsel to defend DOMA.
Hausknecht, also a licensed attorney, also praised Clement for his prestigious legal pedigree and experience arguing cases before the U.S. Supreme Court. "Clement is my top choice for any appellate argument, especially on a subject that will end up before the Supreme Court," wrote Hausknecht in a Monday blog post.
Clement, 45, has a lengthy profile which includes degrees from Georgetown, Cambridge and Harvard Law. From June 2005 until June 2008, he served as the U.S. solicitor general during George W. Bush's administration. He is a partner in the Washington, D.C., legal office of King & Spalding. Clement has argued over 50 cases before the U. S. Supreme Court, according to his profile on the website of King & Spalding.
Hausknecht said of Clement's abilities, "I've not had the pleasure of watching him argue in person, but I've listened to the audio of a couple of his Supreme Court appearances, and I can tell you that this guy is not only the best around, but he has already been talked about as a future nominee to that court."