During a House Judiciary Committee hearing this afternoon, Rep. James Sensenbrenner (R-WI) grilled Attorney General Eric Holder over the administration’s decision not to defend Section 3 of the Defense of Marriage Act, insisting that Congress should repeal the funds that would have been used to argue the case to pay for its own defense of the measure. The House has hired former solicitor general Paul Clement to defend the law and has promised to pay him up to $500,000 for his services.
Holder reiterated that the administration’s view that the history of discrimination against gay people, Congress’ repeal of Don’t Ask, Don’t Tell, and the Supreme Court’s ruling that criminalizing homosexual contact is unconstitutional, led President Obama to apply a heightened level of scrutiny to DOMA in two new cases filed in circuits that had not previously determined which legal test should apply to laws dealing with discrimination against sexual orientation. “Given the nature of the way gay people have been treated in this country, given the reason for the passage of the statute, it was our feeling that a heightened scrutiny test had to be applied. Applying the heighten scrutiny test, we did not think that the statute would pass Constitutional muster,” Holder explained. Sensenbrenner, however argued that the executive branch was usurping the power of Congress and insisted that everyone deserved a lawyer, regardless of the administration’s belief that it could not make reasonable arguments in favor of the law:
SENSENBRENNER: My concern on this, Mr. Attorney General and it’s deeply troubling, is that the President has decided to usurp the function of Congress in making laws which a former president has signed and also to usurp the function of the courts by saying that this law is unconstitutional when that’s not his job. I guess what I can say is, I would certainly support an effort to have the cost of Congress’ defending this provision that the President and you have refused to do so, come out of the Justice’s appropriation. [...]
HOLDER: Several lower courts have ruled that DOMA itself is unconstitutional and the notion that this is somehow something that as you said, ought to be taken off the backs of the Department of Justice in a financial way, I think is inappropriate. The lawyers in the Department of Justice who would have worked on that case, believe me, have more than a full time job and they will have to use the time that might have been used in the DOMA defense they will use it in other areas.
Holder agreed that “good lawyers ought to be involved in this matter” but said that Congress “has the ability to pass an appropriation to pay Mr. Clement for the great defense that I’m sure he would render.”
Sensenbrenner’s argument that “everyone deserves a lawyer” may be noble, but it is also hypocritical. Republicans have recently stripped nearly $16 million from the Legal Services Corporation (LSC), which defends tenants against slum lords, helps women obtain court orders against abusive husbands, protects consumers against exploitative lenders, or to otherwise provides legal representation to Americans who can’t afford it. As Rep. Jerry Nadler (D-NY) quipped, “I’m delighted to hear the observation of the gentleman from Wisconsin — that everyone is entitled to a lawyer — and I look forward to his support of greatly increased appropriations for legal services and legal aid so that people who need lawyers in this country can get it.”