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Today, the House of Representatives Bipartisan Legal Advisory Group, through Speaker John Boehner (R-Ohio), announced that it would be intervening in cases challenging the Defense of Marriage Act’s constitutionality, a move authorized earlier this year by the Republican members of the BLAG. Word then came that former Solicitor General Paul Clement — the top appellate litigator during part of the George W. Bush administration — will be serving as the outside counsel to the House BLAG in its DOMA defense, news that preceded a court filing by Clement seeking to allow the BLAG to intervene in a DOMA challenge.
Boehner, in a letter to Minority Leader Rep. Nancy Pelosi (D-Calif.) referencing the Feb. 23 decision by the Justice Department that it would no longer defend Section 3 of DOMA in court, wrote, “The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House.”
Pelosi, however, shot back, writing, “Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel. Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.”
She also noted, “According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee. … I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.”
Clement, a partner at King & Spalding (bio), will be defending the 1996 law in the litigation — which currently entails two federal appellate cases in the U.S. Court of Appeals for the First Circuit and several federal trial court cases at this time.
[For further information about the King & Spalding lawyers and the contract under which they are defending DOMA, see “Looking Into the DOMA Defense Contract.”]
In a news release, Human Rights Campaign president Joe Solmonese noted, “The firm of King & Spalding has brought a shameful stain on its reputation in arguing for discrimination against loving, married couples. No amount of taxpayer money they rake in will mitigate this blemish on the King & Spalding name.”
Tom Goldstein, a prominent Supreme Court advocate who runs SCOTUSblog, disagreed, telling Metro Weekly, “I hope he loses, and I think that side of the case is on the wrong side of history. But I think the criticism of him and King and Spaulding is completely misguided.
“It’s absolutely a reasonable position, and our system of government calls for the House to be able to defend a law enacted by Congress. The rule of law functions when good advocates put the best arguments before a Court, and Paul is a great and deeply respected and immensely thoughtful advocate.”
University of Pennsylvania Law School professor Tobias Barrington Wolff, however, countered in an email to Metro Weekly, “Lawyers choose the cases that they take. For a private lawyer — as opposed to a government lawyer — there is no obligation to accept cases that run contrary to one’s convictions. Indeed, lawyers define their convictions in part by the cases they select.
“Federal courts require a full and adversarial presentation of the issues when deciding cases. That principle is important,” Wolff wrote. “But Mr. Clement will still be responsible for the arguments he makes in defending this odious statute. If he argues that antigay discrimination is presumptively valid and can be justified by sheer moral disapproval, or perpetuates unscientific claims about the capacity of gay couples to be successful parents to their children — as Speaker Boehner’s public comments have suggested — then that will be cause for criticism.”
Harvard Law School professor Laurence Tribe — who testified against DOMA before Congress in 1996 — suggested that Clement’s presence might be less important than the law that Clement is defending, writing to Metro Weekly, “Paul is very talented and I’m sure DOMA will be well defended, but I believe it is unconstitutional and think it should be struck down despite the best defense.”
Evan Wolfson, the president of Freedom to Marry who was a lawyer on the Hawaii lawsuit that led congressional Republicans to pass DOMA in 1996, took a more directly political tack, writing, “In the midst of an unprecedented feeding-frenzy of spending cuts weighing heaviest on the middle class and most vulnerable, it’s appalling to see Republican House leaders spending even one red cent of our taxpayer dollars — let alone huge high-priced lawyer fees — defending a discriminatory, invasive law that a federal judge appointed by Nixon, Paul Clement’s Republican predecessor as Solicitor General, and the Department of Justice, among many others, all agree is indefensible under the Constitution.”
The Nixon judge, Joseph Tauro found Section 3 of DOMA to be unconstitutional at the trial court level in July 2010 in the two cases currently before the First Circuit. Clement’s predecessor is Ted Olson, the attorney who is leading the challenge to California’s Proposition 8.
In the letter to Pelosi, however, Boehner discussed how he expected those fees to be paid, 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.”
Asked if DOJ should lose the funding that goes to the House BLAG’s defense of DOMA, as Boehner suggested he would like to see happen today, Tribe told Metro Weekly, “Of course not.”
HRC also criticized that tack earlier today, with Solmonese saying in a statement, “The House Republican Leadership continues to show that they’re more interested in scoring cheap political points on the backs of same-sex couples than tackling real problems. … To add insult to injury, he’s now signed on to a right-wing plan to cut funding for the Department of Justice.”
[Photo, top: Boehner (Photo courtesy House website.) Photo, bottom: Wolff (Photo courtesy Penn website.)]
[EDITOR’S NOTE: An earlier version of this story was posted at 6:12 PM.]
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