The Defense of the Defense of Marriage Act

The Defense of Marriage Act (DOMA) (28 U.S.C. Section 1783C) continues to be a hot topic in our nation’s capital. For those not in the know, this is the federal law that defines a marriage as a union between one man and one woman. It was passed in 1996 during the Clinton administration and is the basis of authority which allows states to not recognize marriages that were legitimized in other states unless they meet this requirement.

The constitutionality of this statute is being challenged in Federal Court through several suits, two of which have made their way to the US Supreme Court for a final verdict. The basis of the argument, as I understand it, is that the Constitution has what’s called the “full faith and credit clause”, which means that North Carolina has to recognize and honor laws passed in Arizona or New Jersey or Minnesota, whether they agree with them or not.

The Department of Justice, which is a part of the Executive Branch of our government and therefore under the direction of President Obama, initially defended the law because, in part, that’s what it’s always done.

The current administration tends to defend the actions of prior administrations in part to provide a continuity of laws. One of the things that keeps our country stable is the fact that the laws don’t change every time we get a new President or Congress.

At least not immediately although there seem to be attempts in the current Congress to challenge that assumption. That’s for another day’s discussion, though.

With regard to DOMA, last February the Attorney General (who’s head of the Department of Justice and reports directly to the President) announced that they would no longer be defending the constitutionality of the statute. Essentially, they would allow the cases to go forward to the Supreme Court without opposition.

That’s not as easy as you might think. Once a lawyer is in a case, they normally have to get permission from the Court to withdraw. That’s one reason we require the fee up front. Generally, the Court orders you to continue and figures you were just stupid for not getting those issues taken care of before you jumped into the case. Granted, government attorneys may get a bit of slack there since they can be thrust into things when they’d just as soon not be involved but I doubt it.

As might be imagined, this decision did not sit well with the Republican majority in the House of Representatives. After much foot stomping and whining about the duty to defend the laws as enacted by Congress, they decided to hire their own attorneys to take up the defense.

Here’s the rub, though – it’s all a scam from BOTH sides.

Yes, the Obama administration has stopped defending the statute, having determined that they believe it is unconstitutional. Let’s assume that the Supreme Court decided to let them out of the case. That’s still not as big a deal as you might think.

The important part here is the timing. Any lawyer will tell you that the work of a lawsuit happens LONG before you get to the courthouse. The real work – and the hours and effort – go into the research and writing the briefs that have to be filed. This is especially true at the Appellate level, where there are no witnesses or evidence to prepare or things like that. An appellate case looks solely at the record below and the legal arguments associated with it. Those judges never meet the litigants; they are looking at the record for mistakes.

It’s a lot like a wedding. All the effort is up front. The performance at the end is just the show for the public.

What’s this mean to DOMA? Prior to dropping the defense, all the work has been done. The research is contained on computers and in file cabinets in the Department of Justice, the briefs are already written (if not yet filed) and the work is finished. It’s all available to the Republicans and their attorneys to review, sign and file.

This has not stopped the wailing and gnashing of teeth, however, by Majority Leader Boehner and the other Republicans in the House of Representatives, who have chosen to hire some VERY high priced legal talent to come in and defend the case.

None of that is entirely unexpected, since the Republicans made keeping this law in place one of the foundational parts of their agenda. What’s offensive about it, though, is that they won’t tell the Democrats (even those on the appropriate committees who have a right to know) how much they’re paying their lawyer.

It’s not even clear that they know how much they’re spending.

"Boehner spokesman Michael Steel told The Huffington Post that the amount the U.S. government pays Clement will be determined by his “legal strategy.” He also said that they probably would not be releasing the engagement letter outlining the terms of the relationship with Clement.” (Huffington Post, April 19, 2011).

I understand hourly billing. It’s usually the fairest way to pay for legal services, since the client has an interest in not calling 15 times a day or insisting on numerous unnecessary appointments. Well, they can, but they get billed for it.

And I understand contingent fees – if the case is won, the lawyer gets a cut. Sometimes it’s the only way that a client can pursue their claim, since they simply don’t have the resources to pay an attorney hourly for their work.

But a fee to be determined by the “legal strategy”? And one where half the clients won’t tell the other half of the Board of Directors (i.e. other congress members on the same committee) what the contract says or let them look at it? Nor will they tell the shareholders (i.e. us taxpayers) how much it costs?

Talk about buying a pig in a poke!

So the whole affair is somewhat offensive to me, both as an attorney and as a taxpayer. While I personally think that the law is unconstitutional and just plain wrong, the way we get a decision about that is by taking it to our constitutionally empowered highest court. They are the decision makers because our founding fathers all agreed they would be the final decision maker, and in almost 222 years nobody has thought this was enough of a mistake to change it. The 9 black robes on the Supreme Court have the final say.

DOMA needs to be challenged in the Supreme Court. Even in an uber-conservative court such as we have now, I feel confident that it will be found to be unconstitutional. But without that challenge, the elimination of the statute will never be viewed by those who oppose it as legitimate.

In deference to the “birthers”, I’m not sure that will make a lot of difference, either, but it’s the best we’ve got. Some people would not be convinced, even when faced with unrefutable proof.

The Obama administration has significant fault here and is playing politics by deciding to stop defending the statute. The action is too little, too late. If they legitimately thought that the legislation was unconstitutional and should not have been defended, they should have made the announcement months earlier, before all the effort had been made (and the briefs written) to defend the action. An announcement in February of this year is simply playing politics and trying to get a bit of mileage out of a non-decision.

Conversely, the Republicans need to suck it up and deal with reality. They got a case handed to them on a silver platter and have hired what I suspect is significantly overpriced legal help to legitimize their whining later that they were brought into the matter too late to adequately defend the statute. They’ve not only been handed an easy appeal, they’ve been handed a “win” whether the case is successful or not. They are, in effect, buying an excuse (in the form of attorney fees) to use in the 2012 elections if a decision is made by then and the Supremes overrule the statute.

Lastly, and then I’ll release the soap box to the next speaker, every taxpayer ought to be outraged at the refusal to outline what hiring this outside counsel is going to cost. Our representatives need to remember that it is OUR money that they are spending and, absent an issue of national defense, we are entitled to “see the books.” That includes knowing how the lawyer they’ve hired is going to be compensated and how much we’re spending to defend a lawsuit.

It could just be that many constituents would feel that the law is simply not worth the money.