House Republicans today appointed a private attorney to argue on behalf of the Defense of Marriage Act, which the Obama administration essentially abandoned two months ago, and vowed to take funds from the Justice Department budget to pay for it.
In February the Obama administration announced it would no longer defend the 1996 act, which defines marriage as between a man and a woman. Attorney General Eric Holder said at the time that while the administration had previously defended DOMA in court, it had recently conducted a new examination and found the law was unconstitutional.
"DOMA cannot be constitutionally applied to same-sex couples whose marriages are legally recognized under state law," Holder wrote in a letter to John Boehner.
Facing a deadline in one of the 12 federal cases -- Windsor v. United States -- Boehner today named Paul D. Clement, the former solicitor general for George W. Bush, to officially take the lead in mounting a defense of the statute.
"This action by the House will ensure that this law's constitutionality is decided by the courts, rather than by the President unilaterally," Boehner said in a statement last month after initially appointing the House General Counsel to take the case when Justice Department lawyers stepped aside.
The appointment of Clement, who likely bills thousands of dollars per hour for his services, has sparked debate over who will cover the cost.
White House press secretary Jay Carney told reporters President Obama remains committed to helping Congress defend the law but declined to comment on whether the administration would support the appropriation of taxpayer funds.
Boehner indicated in a letter to House Minority Leader Nancy Pelosi that he intends to offset the cost of a private counsel with reductions from the Justice Department's budget.
"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," Boehner wrote. He did not provide an estimate for how much should be diverted to cover the costs.
"I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged," Pelosi responded in a letter. "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. The House of Representatives need not enter into this lengthy and costly litigation."
Clement is expected to waste no time in his new role, filing briefs in federal court as early as today in support of the law.
Social conservatives praised the selection of Clement and the renewed defense of DOMA.
"At last we have a legal eagle on this case who actually wants to win in court," said Brian Brown, president of the National Organization for Marriage. "Thanks to Speaker Boehner's actions, President Obama's attempt to sabotage the legal defense of DOMA is not going to work."
But gay rights advocates sought to portray the move as the latest example of Republicans' fixation on social issues at the expense of legislating on jobs and the economy.
"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," Human Rights Campaign president Joe Solmonese said. "As Americans across the country continue to struggle, Speaker Boehner's prescription has been to keep families he doesn't like from accessing needed protections."
Americans Divided on Gay Marriage
DOMA was passed by a Republican House and Senate and signed into law by Democratic President Bill Clinton in 1996. The law means same-sex couples are not afforded the same rights as straight couples when it comes to Social Security benefits, hospital visitation and other rights.
Americans divide about evenly on gay marriage, according to the most recent ABC News/Washington Post poll.
Forty-seven percent said it should be legal, while 50 percent said it should be illegal, with strong opinions on both sides.
As recently as 2006, 36 percent favored legalizing same-sex marriage with 58 percent opposed.
Gay civil unions, with "the legal rights of married couples in areas such as health insurance, inheritance and pension coverage," are less controversial -- 66 percent in favor, according to the latest poll, a new high by a substantial margin.