Earlier this month, House Speaker John Beohner (R-OH) said he did not have an estimate for the cost of defending the constitutionality of the 1996 Defense of Marriage Act (DOMA), but insisted that the House “didn’t have any choice” but to stick up for the measure. The Obama administration announced that it would not be defending the law in late February, after two new cases in jurisdictions without precedent on how sexual-orientation classifications are scrutinized pushed the President to adopt a higher-standard of constitutional review and conclude that the law did not meet its standard.
Today, in response to a letter from Minority Leader Nancy Pelosi (D-CA) pressing Boehner for “an estimate of the cost to taxpayers for engaging private lawyers to intervene in the pending DOMA cases,” the Speaker — without identifying a specific amount — said that the funds used to defend the measure could be diverted from the Department of Justice and blamed the administration for the increased costs:
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. [...]
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.
But as Pelosi pointed out in her March 11th letter, “There are numerous parties who will continue to litigate these ongoing cases regardless of the involvement of the House.” “No institutional purpose is served by having the House of Representatives intervene in this litigation which will consume 18 months or longer,” she wrote. This seems particularly true in the midst of today’s budget crisis and the GOP’s push to lower government spending. Republicans would also need to pass legislation in both chambers in order to divert the DOJ funds.
According to a polling conducted by the Human Rights Campaign (HRC), 51 percent of voters already oppose DOMA while only 34 percent favor it. A recent ABC News/Washington Post poll also found that “more than half of Americans say it should be legal for gays and lesbians to marry, a first in nearly a decade of polls.” Today is the deadline for the House to file a motion in Windsor v. United States of America, one of the major cases challenging DOMA.
Pelosi responds to Boehner:
The House of Representatives need not enter into this lengthy and costly litigation. Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.” As you know, only the courts can determine the constitutionality of a statute passed by the Congress.