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Tag Archives: DOMA

Delay in DOMA cases?

New filing are expected at the U.S. Supreme Court in pending certiorari petitions involving the constitutional challenge to the Defense of Marriage Act, a law prohibiting the federal recognition of same-sex marriages even where they are allowed under state law.

The filings, from both the Obama administration and House Republicans defending the law, could be in response to a recent 2nd Circuit ruling striking down the law and extending constitutional protections for gays and lesbians. The justices had been expected to soon decide whether to take any or all of the cases up, but could delay that move in order to consider all DOMA-related challenges at once, SCOTUSblog’s Lyle Denniston explains.

In addition to the DOMA petitions, the justices have also been asked to take up the case challenging California’s voter-approved Proposition 8, which bans gay marriage in that state.

Lawmaker blasts House’s hefty DOMA legal defense tab

Most BigLaw clients would not be surprised by a $1.5 million legal tab. But when that tab is incurred by the House’s defense of the Defense of Marriage Act – and is thus charged to taxpayers – people take notice.

Rep. Honda

As did Rep. Mike Honda, who called the legal bill a “irresponsible, backdoor use of taxpayer money” according to U.S. News and World Report (HT: WSJ’s Law Blog). The California Democrat is calling for a hearing on the issue after House Republicans agreed to increase the pay cap for Bancroft partner Paul Clement’s work on the case.

As a quick recap, after the Attorney General Eric Holder announced that the Justice Department would no longer defend the law, House Speaker John Boehner announced that the House would send its own counsel to defend the law in federal court.

Clement

And not just any counsel. House GOP lawmakers tapped former U.S. Solicitor General Paul Clement – at the time a partner at King & Spalding – to defend the constitutionality of the law.

But then King & Spalding pulled out, causing Clement to abruptly resign the firm in protest and continue the defense of the law with Bancroft.

Now, U.S. News reports, the firm’s legal fees were initially capped at $500,000, but that amount was increased to $750,000. But that “cap may be raised from time to time up to, but not exceeding $1.5 million, upon written notice of the General Counsel to the Contractor.”

That does not make Honda happy. “How long are we going to let this Republican political exercise go on, and at what cost to the American tax payers?” he told U.S. News.

But Michael Steel, spokesman for House Speaker John Boehner, defended House Republicans’ actions, saying they are defending the law is because “the Justice Department chose to shirk its constitutional duty to do so.”

DOMA repeal bill gets White House backing

For the first time, a bill to repeal the Defense of Marriage Act has White House support.

Yesterday the Obama administration announced its support for the Respect for Marriage Act, legislation filed by California Sen. Dianne Feinstein that would wipe the federal law barring recognition of same-sex marriages off the books, the Washington Post reports. The bill would amend the U.S. Code to provide that, for federal purposes, “an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into.”

The endorsement is the most direct opposition the White House has expressed toward DOMA. In February, the Justice Department announced that it would no longer defend constitutional challenges to Section 3 of the law, which defines marriage as between a man and a woman. Feinstein’s proposed legislation would repeal the law in its entirety – including Section 2, which allows states to refuse to recognize same-sex marriages from other jurisdictions.

“This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples,” said White House press secretary Jay Carney, according to Metro Weekly. “[DOMA] continues to have a real impact on the lives of real people – our families, friends and neighbors.”

The Senate Judiciary Committee will hold its first hearing on the legislation today.

Legal shakeup over House GOP’s DOMA defense (access required)

Clement

After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.

House Republicans begin DOMA defense, seek cost reimbursement from DOJ (access required)

Clement

Clement

After hiring former U.S. Solicitor General Paul Clement to defend the constitutionality of the Defense of Marriage Act, House Republicans officially entered the ongoing legal battle yesterday with a motion to intervene in a New York-based challenge to the law.

As you may recall, in February Attorney General Eric Holder announced that the Obama administration would no longer defend the law in federal court, spurring House Speaker John Boehner to announce that the House would defend the law. Since no Democratic members of the House have joined the effort, it is more accurate to say House Republicans are defending the law, points out SCOTUSblog’s Lyle Denniston. The Bipartisan Legal Advisory Group convened by Boehner voted to allow the House to move forward with the law’s legal defense.

Boehner

Boehner

In addition to yesterday’s legal filing, Boehner also sent a letter to House Minority Leader Nancy Pelosi informing her of his intent to seek reimbursement from the Department of Justice for the costs of defending the law.

“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” the letter states.  “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 said he has “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.”

Boehner: House lawyers will defend DOMA (access required)

Just days after Attorney General Eric Holder sent a letter to Congress informing lawmakers that the Justice Department will no longer defend the Defense of Marriage Act – which denies federal benefits to same-sex married couples – House Speaker John Boehner announced that the House will send its own lawyers to defend the law in federal court.

The Ohio Republican will convene a House panel called the Bipartisan Legal Advisory Group that will have the power to order the House general counsel’s office to bring legal action on behalf of the House.

In announcing the move, Boehner chided President Obama for his decision to stop defending the law.

“It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy” Boehner said in a statement Friday. “The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

Friday morning docket: Judicial showdown over same-sex benefits

There is a battle brewing over the issue of extending same-sex benefits to federal court employees.

In this corner: 9th Circuit Chief Judge Alex Kozinski, who granted health benefits this week to the same-sex partners of court employees. The move came after colleague Judge Stephen Reinhardt gave a similar ruling for a federal public defender, finding that the Defense of Marriage Act was unconstitutional.

In the other corner: The U.S.  Office of Personnel Management in Washington, which rejected Kozinski’s ruling, saying it had to enforce the DOMA  – which bars such benefits for federal employees – even though the White House disagrees with it.

That didn’t set well with Kozinski, who yesterday ordered the OPM Thursday to quit interfering with his orders, arguing that the agency is exceeding its authority.

“The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal,” Kozinski wrote in his 18-page order. “I don’t believe Congress intended to grant OPM that authority. Instead, I hold [Congress] recognized the Judiciary’s inherent authority to resolve workplace complaints without interference by the Executive [branch]. This court’s non-discrimination plan requires that” the employee get spousal coverage. “OPM had, and has, no authority to conclude otherwise.”

A federal challenge to California’s state ban of same-sex marriage is currently pending in a California district court. The 9th Circuit would be the next stop for the case, since its outcome is likely to be appealed either way.

In other news,

Honeymoon’s over: Growing discontent over the economy, recovery efforts turn into a wave of criticism and outright anger from members of Congress directed at the Obama administration. (Washington Post)

Iqbal bill’s in the House: House lawmakers introduced a bill Thursday that would reverse two recent Supreme Court rulings and restore the “notice pleading” standard for federal civil actions. (Lawyers USA)

Trials and tribulations: The number of state court tort suits that make it to trial declined steadily over a 10-year period ending in 2005, dropping to about 4 percent, according to a new report from the U.S. Department of Justice Bureau of Justice Statistics. (Lawyers USA)

‘Loser pays’ med-mal bill: Two lawmakers have introduced a bill that would require losing medical malpractice plaintiffs to pay the legal costs of both parties. (Lawyers USA)

E. coli bill filed: Citing public concern about the safety of ground beef, Senator Kirsten Gillibrand introduced legislation that would require companies to test for a deadly E. coli strain. (New York Times)

Ricci saga continues: A group of black Connecticut firefighters hopes to block promotions for white firefighters who won a discrimination case before the U.S. Supreme Court. (AP)

Frank: Scalia is a ‘homophobe’

barneyfrankRep. Barney Frank, the outspoken Massachusetts lawmaker who chairs the House Financial Services Committee, called U.S. Supreme Court Justice Antonin Scalia a “homophobe” during a recent interview about gay rights issues.

Frank, who is gay, was interviewed by the news website 365gay.com. In the video interview, available on the website, Frank was asked about of the Defense of Marriage Act, the 1996 law that prevents the federal government from recognizing gay marriages and gives states the right not to recognize gay marriages even if legal in another state. Frank said the only way to end the law would be through a constitutional challenge before the nation’s highest court.

scalia1“I do think that [the] argument that it is unconstitutional for the federal government to pick and choose as to which marriages it will accept is a good one,” Frank said. “At some point it’s got to go to the United States Supreme Court.

“I wouldn’t want it to go to the United States Supreme Court now,” Frank added, “because that homophobe Antonin Scalia has got too many votes on this current Court.”

According to he Associated Press, Scalia declined to comment to Frank’s remark Monday.

Frank: Scalia is a ‘homophobe’

barneyfrankRep. Barney Frank, the outspoken Massachusetts lawmaker who chairs the House Financial Services Committee, called U.S. Supreme Court Justice Antonin Scalia a “homophobe” during a recent interview about gay rights issues.

Frank, who is gay, was interviewed by the news website 365gay.com. In the video interview, available on the website, Frank was asked about of the Defense of Marriage Act, the 1996 law that prevents the federal government from recognizing gay marriages and gives states the right not to recognize gay marriages even if legal in another state. Frank said the only way to end the law would be through a constitutional challenge before the nation’s highest court.

scalia1“I do think that [the] argument that it is unconstitutional for the federal government to pick and choose as to which marriages it will accept is a good one,” Frank said. “At some point it’s got to go to the United States Supreme Court.

“I wouldn’t want it to go to the United States Supreme Court now,” Frank added, “because that homophobe Antonin Scalia has got too many votes on this current Court.”

According to he Associated Press, Scalia declined to comment to Frank’s remark Monday.