Speaker Boehner brings on former Solicitor General to run DOMA defense

April 18, 2011 at 12:45 pm 55 comments

By Adam Bink

Two developments. One is that Speaker Boehner is again insisting that Department of Justice funding be cut to pay for the defense of DOMA that the House is mounting. In a letter responding to Leader Pelosi’s March inquiry, he wrote:

April 18, 2011

The Honorable Nancy Pelosi
Democratic Leader
U.S. House of Representatives
H-204, the Capitol
Washington, DC  20515

Dear Leader Pelosi:

Thank you for your letter of March 11, 2011 regarding the Bipartisan Legal Advisory Group’s (BLAG) decision to defend the constitutionality of the federal statute, Defense of Marriage Act (DOMA).  This decision was necessitated by the extraordinary announcement by the current Attorney General, U.S. Department of Justice (DOJ) declining to defend the constitutionality of Section 3 of that Act. 

Had the BLAG not taken this action, the constitutionality of the law would have been determined by a unilateral action of the President.  By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality. 

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.  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. 

I appreciate that ordinarily DOJ should be in a better position to defend a federal statute in the Courts, both in terms of resource allocations and in expertise of personnel.  However, by the President’s action through the Attorney General we have no choice; the House now faces that additional burden and cost.  I would also point out that the cost associated with DOJ’s decision is exacerbated by the timing of this decision.  Most of these cases are in the middle of lower court litigation and not ripe for Supreme Court review.  Had the Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated with the House defense would have been exponentially lower.

I would welcome your joining me in support of redirecting those resources from the DOJ to the House that would otherwise have been necessary expenses on the Attorney General to defend this federal statute.  In the interim, I have directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend. 

Thank you.


                                                            JOHN A. BOEHNER

Mis-direction abound here, as Boehner told the press he didn’t know how much it would cost taxpayers for the House to mount a defense. Now, he’s hoping you can’t keep your eye on the ball, as he still refuses to say how much it will cost, but says the DOJ funding should go to pay for it. Nice try, Mr. Speaker.

Second development is that The Advocate’s Andrew Harmon tweets that former George W. Bush Administration Solicitor General Paul Clement will lead the House’s defense (just to get an idea of perspective, Ted Olson was also a Solicitor General in the Bush Administration). Unless he’s doing it pro bono or at reduced cost, you can bet your bottom dollar that’ll cost us taxpayers a pretty penny. While we’re cutting funding for… well, I’ve lost track of all the worthy people and services at this point.

Clement comes from a firm, King & Spaulding, that has a track record of service and extremely high ratings on HRC’s Corporate Equality Index. I wonder what the firm’s partners think of this.

Entry filed under: DOMA trials.

Will President Obama catch up with Louis Marinelli? Video: Henry, Josh, DOMA, and what Janet Napolitano can do about it

55 Comments Add your own

  • 1. Alan E.  |  April 18, 2011 at 12:52 pm

    What does he care? He’s not personally paying for it, and his constituents want to pursue it.

  • 2. Ronnie  |  April 18, 2011 at 12:54 pm

    “but says the DOJ funding should go to pay for it. Nice try, Mr. Speaker.”

    But how is the DOJ paid?….That’s right, tax payer funding. ALL tax payers, including LGBT & Straight Ally tax payers….I WANT A REFUND or don’t tax us anymore.

    “Unless he’s doing it pro bono or at reduced cost, you can bet your bottom dollar that’ll cost us taxpayers a pretty penny.”

    Again….I WANT A REFUND or don’t tax us…It really is that simple…<3…Ronnie

  • 3. Ann S.  |  April 18, 2011 at 12:55 pm

    Hmm, what I associate King & Spalding with is this lawsuit, which included allegations (never denied, apparently) that they encouraged female associates to have a wet t-shirt contest (later changed to a bathing suit contest — because it’s totally OK to make your female employees parade around in bathing suits to be ogled by their male colleagues).

    But that was literally decades ago. Hopefully they have progressed beyond that.

  • 4. LCH  |  April 18, 2011 at 12:58 pm


  • 5. Mackenzie  |  April 18, 2011 at 1:14 pm

    what a cute little letter. Way to hire some bigwig lawyer to try and WIN the case in your favor. If he wants funding from the DOJ maybe he should hire somebody closer to a federal defenders pay grade…..ridiculousness.

  • 6. Kathleen  |  April 18, 2011 at 1:26 pm

    • 7. Straight for Equality  |  April 18, 2011 at 2:24 pm

  • 8. Jim  |  April 18, 2011 at 1:27 pm

    Latest from NOM’s blog: “At last we have a legal eagle on this case who actually wants to win in court!”

    Yep. Those legal eagles worked out well for y’all last time, too.

    • 9. Kate  |  April 18, 2011 at 1:31 pm

      They wouldn’t know a legal eagle if it picked them up in its talons.

      • 10. DazedWheels  |  April 18, 2011 at 1:55 pm

        +INFINITY to Kate!!! :-)

      • 11. Rhie  |  April 19, 2011 at 6:15 pm


  • 12. Sagesse  |  April 18, 2011 at 1:41 pm

    The defense of the multiple DOMA lawsuits using DOJ’s staff counsel would be lost in the rounding of the DOJ budget. (The DOJ won’t be laying off lawyers now that they don’t have DOMA to deal with.) The House of Representatives staff counsel, however, does not have nearly the budget nor the resources to take this on. To hire outside counsel at all means paying big firm legal fees. It’s completely expected that they would hire someone credible and experienced in dealing with constitutional challenges.

    The amount could balloon if there are additional DOMA challenges, and there will be gnashing of teeth and ranting about how much it is, but it will still get lost in the rounding of the DOJ budget. The whole discussion is for show.

  • 13. Kathleen  |  April 18, 2011 at 2:03 pm

    Former Solicitor General Paul Clement Signs Up to Defend Marriage Law

  • 14. AB  |  April 18, 2011 at 2:19 pm


    • 15. Mike  |  April 18, 2011 at 9:45 pm

      Snap! Love you, Nancy!

  • 16. Tim  |  April 18, 2011 at 2:22 pm

    In the interim, I have directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.

    The whole “join me in asking DOJ to pay for it with the funds they aren’t spending now that they’re not defending it” thing is a red herring. He knows that’s not going to go anywhere, but now he’s “answered Pelosi’s question” about who’s going to (or in his view who should) pay for it. Meanwhile, he has directed taxpayer funds to be spent anyway, with the hiring of Clement.

    So, he gets away without answering the question and does what he wants anyway.

    So much for the Republican Accountability-in-Government-Spending mantra. Hypocrites.

  • 17. Alan E.  |  April 18, 2011 at 2:58 pm

    BREAKING: Boehner Hires $5 Million Lawyer To Defend Unconstitutional Law


  • 18. Kathleen  |  April 18, 2011 at 3:01 pm

    UPDATE: Perry
    Proponents’ Reply Brief on the questions certified to the California Supreme Court

    • 19. David Henderson  |  April 19, 2011 at 1:29 am

      Something interesting from page 12: “Indeed, the California Constitution requires State agencies to enforce state law unless it has been invalidated by an appellate court. (See Cal. Const.,art. III, § 3.5(c).)”

      That section of the California Constitution states:

      An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
      (c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.”

      The plain interpretation of this section means (or seems to me to mean) that if the appellate court doesn’t reach a decision on the merits—that is, if they just say “The proponents don’t have standing to appeal, therefore we do not take a position on the decision of the trial court”—then although the trial court’s decision would still stand, the state agencies would still be required to enforce Prop 8.

      That is very worrisome.

      Is my reading of this correct? Or is there more to this?

      • 20. gaydadtobe  |  April 19, 2011 at 9:18 am

        David, this is part of what Pacific Justice Institute tried to claim when they went to the same state court to force the AG and/or Governor to defend the case.

        There is no legal way the state would be able to enforce Prop 8 if it only stayed at the District level because it’s not a measure against pure “federal law,” but instead is measured against the Constitution. The state’s laws cannot trump the Constitution.

        • 21. Joe  |  April 19, 2011 at 10:10 am

          “The state’s laws cannot trump the Constitution.”

          Nor can a single federal district judge override the California Supreme Court. They are not courts of coordinate jurisdiction. The California Supreme Court is only bound by decisions of the US Supreme Court.

          Article III Courts are courts of limited jurisdiction.

          • 22. David Henderson  |  April 19, 2011 at 10:56 am

            The district judge didn’t override the California court, though. The federal court considered a different issue—whether Prop 8 violated the federal Constitution—than the state court did—whether Prop 8 was a revision or an amendment and whether it went through the correct state process.

          • 23. Ann S.  |  April 19, 2011 at 11:10 am

            Well put, David.

  • 24. Kathleen  |  April 18, 2011 at 3:39 pm

    UPDATE: Windsor (DOMA case in NY District Court)

    The House BLAG’s Unopposed Motion to Intervene

  • 25. be4marriage  |  April 18, 2011 at 3:45 pm

    Wasn’t the deadline for the House to file today? I haven’t actually seen anything…

    • 26. Kathleen  |  April 18, 2011 at 3:51 pm

      See above…

  • 27. Kathleen  |  April 18, 2011 at 4:47 pm

    UPDATE: Perry

    Media Coalition’s Motion to Intervene for the purpose of joining in the motion to unseal the trial recordings.

    • 28. Kathleen  |  April 18, 2011 at 4:51 pm

      And the Media Coalition’s Brief to Join in Plaintiffs’ Motion to Unseal Trial Recordings.

      • 29. Sagesse  |  April 18, 2011 at 5:51 pm

        Hmmm. Or, proponents could awaken TWO tigers.

  • 30. New  |  April 18, 2011 at 6:00 pm

    “However, by the President’s action through the Attorney General we have no choice.”
    BLAG had VOTED 3 to 2 in favor of the House taking the defense of DOMA. I guess that according with Mr. Boehner, his YES vote is not considered a CHOICE?
    Was he obligated to vote “yes” for some reason?

  • 31. Mackenzie  |  April 18, 2011 at 6:51 pm


    so Governor Brewer is a hater, big surprise. My question is this. Is the law legally sound? I feel giving one kind of couple preference over another for no good reason for all adoptions, by default creates an uneven class system. This isn’t even denying gays the right to adopt, but instead insinuates that straight couples are somehow more capable or better.

    • 32. adambink  |  April 19, 2011 at 5:04 am

      And here, her approval rating ticked up a point in my book when she ended up vetoing dumb bills to require Presidential candidates produce birth certficiates to appear on the state’s ballot, and to authorize carrying weapons on college campuses. I guess not.

  • 33. Gregory in Salt Lake City  |  April 18, 2011 at 6:54 pm

    OT – “Gay ducks” that have taken up residence near my home.


  • 35. be4marriage  |  April 18, 2011 at 6:58 pm

    I just noticed that the NOM Facebook page has used the Facebook intermingled with the NOM logo to make it look like the two companies are in partnership with each other. I think it’s pretty sad that NOM tried to make it look like Facebook supports their discrimination.I’d encourage everyone to go to the NOM facebook page and report them as spam or scam.

    • 36. Ronnie  |  April 18, 2011 at 7:25 pm

      So NOM may officially be violating Facebook copyright rules that they signed by starting a Facebook page…..


      5. Protecting Other People’s Rights
      ….5.6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.

      Does NOM not know how to abide by rules at all?…oh wait, that’s right….NOM thinks they are above the law & above any rules that that agree to adhere to. They think they can do whatever they want…..I’ve reported the photo to Facebook as spam & I am figuring out how to contact Facebook & report NOM for violating Facebook’s terms of service 5.6……Good job NOM….FAIL!!!…. > I ….Ronnie

      • 37. Kate  |  April 18, 2011 at 7:40 pm

        I haven’t been able to find this nom/FB logo but also want to point it out to FB.

        • 38. Kathleen  |  April 18, 2011 at 8:03 pm

          It’s here, Kate:

          As we all know, NOM doesn’t think intellectual property laws apply to them any more than campaign laws do.

          • 39. Kate  |  April 18, 2011 at 8:07 pm

            My hero! Thank you, Kathleen.

          • 40. Kate  |  April 18, 2011 at 8:10 pm

            Jeez. Their infringement is even more egregious than I had expected.

          • 41. Ann S.  |  April 18, 2011 at 9:32 pm

            @Kate, I agree. I reported as possible copyright violation.

          • 42. Alan E  |  April 18, 2011 at 10:21 pm

            Use this link to report a copyright infringement claim.


            Note, I put in “not needed” in the address and phone number slots. Make sure you provide the URL of NOM’s page.

          • 43. Kate  |  April 19, 2011 at 6:57 am

            Done. Unfortunately, our account e-mail address is required, and there is this note added by FB:

            “Note that we routinely provide your contact information to the user that posted the content you are reporting.”

            I do NOT want to hear from NOM about my reporting them to FB!!!

          • 44. Ann S.  |  April 19, 2011 at 11:08 am

            Kate, I reported them, and if NOM wants to contact me about it — bring it on!

        • 45. AB  |  April 18, 2011 at 9:38 pm

          “You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.”
          That is one of the terms.

          • 46. AB  |  April 18, 2011 at 11:20 pm

            You know what I just realized… this is really hypocritical. Remember when the Proponents sent a cease and desist letter TO THIS VERY WEBSITE for using a similar logo? Now they are just using facebook’s logo straight out?
            Hmm… pot? Kettle? Black? Anyone?

          • 47. Samantha  |  April 19, 2011 at 4:45 am

            The difference AB is that they did not simply take a similar design to facebook or its colour or font they are writing “Facebook” on their display of their page which would make it seem as though Facebook endorses their group (which it clearly would not)

          • 48. Ronnie  |  April 19, 2011 at 8:37 am

            It is so Pot meet Kettle that the Thermos is wanting to get in on the action….. ; ) ….Ronnie

  • 49. Ed  |  April 18, 2011 at 9:44 pm

    OT, but this link is from Mr Clement’s law firm, regarding LGBT….


    • 50. Ann S.  |  April 18, 2011 at 10:08 pm

      I know a gay lawyer at Ted Olsen’s firm, and he says the atmosphere definitely got better and more open for LGBT people there when Olsen took on the Prop 8 case. I suppose this will have something of the opposite effect at King & Spalding, hard as they will still try to mouth all the right things about diversity.

      OTOH, it can be a mistake to identify a lawyer too closely with a case he or she chooses to take (as every criminal defense attorney will tell you). Lawyers can simply be “hired guns”, if you will, for their clients.

      On the third hand, there’s that old saying about knowing someone by the company they keep. I have a hard time believing Clement took this just because he needed to keep busy.

      And finally, on the fourth hand, this looks as though it will probably be extremely lucrative work for the firm overall if they’re charging full rates (which they may or may not be), given the number of cases involved.

      But I wouldn’t be knocking on K&S’s door any time soon, if I happened to be looking for employment.

  • 51. AnonyGrl  |  April 19, 2011 at 8:00 am

    I sent their Diversity Committee Chair an email saying “How is it that your firm, with its policy of supporting the LGBT community, has no problem accepting my tax money to defend an unconstitutional law that discriminates against the LGBT community and makes us second class citizens. I object strongly. Why don’t you?”

    I don’t expect it will do any good… but maybe if they get enough like that, they will at least feel bad about it.

    I do realize that lawyers are not required to personally approve of the cases they take. It is a shame when they don’t turn down cases that should be turned down for reasons of conscience, though.

    • 52. Gregory in Salt Lake City  |  April 19, 2011 at 5:12 pm

      Good for you! Most days I take an optimistic view of all this but when I see my hubby, Franck, People in the Maryland trailer suffer I just want shake Brian and Maggie et al and scream in their faces that they are killing and destroying families by their ignorance! GRRRRR!!

      The Diversity Committee Chair SHOULD object and defend our rights. How much more death and destruction will need to be evident before the haters realize our being married does NOTHING to dilute their marriages…opposite…it strengthens marriages makes for healthier/happier families.

  • 53. Mouse  |  April 19, 2011 at 10:47 am

    Please just repeal this unconstitutional garbage law of discrimination before a cent of my taxes go toward defending it.

    I do not want my money to pay the lawyers who will be arguing why I should remain a second-class citizen.

  • 54. Nyx  |  April 19, 2011 at 11:15 am

    Even though it is sometimes difficult to watch everyone should have access to a lawyer in the courtroom. We cannot equate the lawyer with the crime.

    • 55. Gregory in Salt Lake City  |  April 19, 2011 at 5:39 pm


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