DOMA funding shift is reasonable

A Commentary

Timothy Kincaid

April 21st, 2011

Sometimes in the very heated battle over social and civil equality, we respond to situations only from a win/loss perspective. That which we see as advancing our goals is good and anything that has the possibility of deterring us is bad. Often, not just bad, but heinously objectionable, bigoted, and an assault on all that is reasonable or decent.

And it is through that lens that much of our community has measured House Speaker Boehner’s decision to defend DOMA, hire Paul Clement, and fund the defense. Because these actions could result in the continuance of discriminatory treatment they are seen as egregious; and because they impact gay people they are seen as evidence of unbridled hatred and homophobia.

I suggest that such a perspective is myopic and naïve.

So as to avoid angry accusations, let me state what should be obvious and get it out of the way. Yes, I believe that DOMA is a violation of the US Constitution. Yes, many Republicans who are seeking the defense of DOMA are motivated by animus, arrogance, or political cynicism. Yes, I believe that President Obama and Attorney General Holder were correct in determining that anti-gay discrimination meets the requirements for heightened scrutiny and that there is no defense of DOMA that can withstand that standard. No, I am not self-loathing or a shill for anyone or selling out my community.

However, I do believe that each branch of government must be allowed to defend its power. If the Administration opts not to defend a law, the House not only can but should consider how such action accords with the will of its members and act accordingly. The Senate chose to allow the President’s decision to stand but the House chose to defend the vote of its members. This are both reasonable actions in response to the Administration’s action.

I disagree with DOMA and would have preferred that the House, through its leadership, had reached the same conclusion as the Administration and the Senate. But the defense of the House’s DOMA vote is not, de facto, an more of a bigoted action than would be the defense of any other vote.

Nor is it peculiar, unfair, or unreasonable to hire competent counsel.

Some see it as outrageous that the House would divert funds to pay for the defense of DOMA. I find it to be the rational decision.

Those in the House who oppose DOMA have attempted to introduce arguments based less on the matters of constitutionality and more designed as a game of political gotcha. Former-Speaker Pelosi, seeking political points on the matter, implied hypocrisy by noting that Republicans speak of lower governmental spending and here Boehner was going to spend a ton on defending this law.

In response, Boehner noted that Attorney General Holder’s office is entrusted with defending the House’s votes and is funded accordingly. Should he choose not to do so, this frees up funds which would otherwise be so allocated. So, he argues, such funds should be moved to the agency that is willing to engage in this defense. If the House is allocating funds to pay for the defense of its laws, then they money should go to the agency doing the defending.

Yes this is a partisan jab. Yes it is designed to punish the Administration for their decision. But it is also logical and reasonable.

In our continuing battle against institutionalized discrimination, let’s keep focus. The process is not our enemy. The funding is not our enemy. The balance of powers is not our enemy. Rather, the discriminatory language in DOMA is our enemy and we should battle it where it matters, before the court.

In the long run we will not win by silencing the voices of those who support DOMA. We will win by subjecting their views to the harsh glare of judicial scrutiny. And DOMA Section Three is such a violation of the principles of states’ rights – and individual rights – that it is nearly inconceivable that it withstand such glare.

On this I agree with Speaker Boehner: “The constitutionality of this law should be determined by the courts.”

enough already

April 21st, 2011

While I understand the logic of your argument, I can’t help but remember the letters my Nazi supporting relations in post WWI Germany wrote to family members in America. There was always this excuse that they were obligated to stand up for properly elected legal government.

If it helps to defeat this piece of hate in an open court of law so that nobody can deny the fairness of our victory, fine. I have my doubts however – I do think of our enemies in black and white terms and I don’t believe for a nanosecond that they’ll credit us for winning fair and square.


April 21st, 2011

However, I do believe that each branch of government must be allowed to defend its power.


I disagree with DOMA and would have preferred that the House, through its leadership, had reached the same conclusion as the Administration and the Senate.

And isn’t that what we’re criticizing them for?

At least that’s what I’m criticizing them for.

I think Congress should have the authority to intervene in court and defend laws, I just don’t think that defending this particular law is meritorious, or a good use of money or time.

Yes, almost all (all?) the Republicans in the House disagree… but that is precisely what we are faulting them for — not their ability to exercise this power, but their decision to exercise this power in this particular case.

I don’t see how you can believe that the DOMA funding shift is reasonable unless you not only believe that Congress can defend the law in court, but should defend it in court.

If you don’t believe Congress should defend it in court, then spending money on it, and taking money from the DOJ, can only be unreasonable.

Jim Burroway

April 21st, 2011

Unsurprisingly, I COMPLETELY disagree with the notion that shifting funds is unreasonable. You had me with you, until this:

In response, Boehner noted that Attorney General Holder’s office is entrusted with defending the House’s votes and is funded accordingly. Should he choose not to do so, this frees up funds which would otherwise be so allocated. So, he argues, such funds should be moved to the agency that is willing to engage in this defense. If the House is allocating funds to pay for the defense of its laws, then they money should go to the agency doing the defending.

Boehner may have noted it, but that doesn’t make it true.

The Attorney General’s office is not the House’s house law firm, but the people’s advocate before the courts. That is bourne out by the fact that the Justice Department is not just a bunch of trial lawyers, but is also composed of offices which monitor crime trends across the U.S. (including hate crimes), which monitors civil rights violations and regulates fair voting practices. It runs the federal prison system and law enforcement agencies like the FBI, DEA, ATF and federal marshalls.

DOJ is not, and never has been, funded according to how many cases it argues in the courts. If the DOJ argues x number of cases in 2010 but only x-1 cases in 2011, Congress does not get a refund for unbilled hours. Instead, DOJ’s budget for the cases it argues determines the kinds of resources that can be dedicated to some cases versus other cases. If one of their cases happens to go away for whatever reason, all it means that perhaps a few other cases then can hire an extra expert witness or legal assistant, which arguably enhances the DOJ’s performance overall.

But the third fallacy in play here is that the DOJ’s decision on Windsor v. US means that it “frees up funds.” Again, not true. At the next session of Windsor v. US, the defense table will not be vacant. As Holder said in his letter to Boehner, “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.” In other words, there will still be briefs to file and arguments to be made. They aren’t walking away.

And so Boehner’s announcement that he is pulling funds from DOJ will not just impact the DOJ’s presence at Windsor v. US, but can also impact other cases as well. It is within the House’s prerogative to intervene in the case, but they are joining DOJ in the case, not replacing them. There is nothing logical or reasonable about Boehner’s funding threat.


April 21st, 2011

your logic is flawed in your contention that funds to DOJ should be given to the house in their private fight over DOMA.

The DOJ budget does not include a line item or special allocation that sets aside specific money for DOMA legislation.

If it did you might have a valid argument, but it doesn’t.

The senate, who has to approve funding just like the house does, has not joined this call. They will get none of the money.

Instead, the house committee on its own, without participation of Democrats on that same committee, have given a contract to use taxpayer funds to a private entity. Since they have not produced any proof that they followed governmental contracting laws, they are already twice in violation of their own requirements.

There was no floor vote on the action.

There was no participation of house democrats.

There were no public requests for bids.

The senate has not signed off of this and neither has the president.

Under those circumstances it is questionable that they have the right to enter into the contract at all.

They may legally be able to do so, but the funding, that they alone agreed too, needs to come from their funds not the DOJ funds which were previousl approved without a line item designation for defending DOMA.

That you find it a reasonable situation is disturbing on multiple levels.

It demonstrates a serious lack of research into how the government works and how the funds for DOJ are allocated.

Under your thoughts, anytime DOJ refuses to prosecute a case, the house (or senate) based on its then current ideological makeup, could just sap them for an arbitrary amount to pursue their transient social agenda.

that is an abomination against the procedures and sovereign nature of each branch of government.


April 21st, 2011

The Supreme Court of the United States has become the supreme court of the Republican Party due to ideologues including Thomas and Scalia. They are easily two of the worst justices in our country’s history.

I don’t want them deciding my rights. They are not interested in your rights or mine.

They are greatly invested in corporate america and backwards social movement.

Timothy Kincaid

April 21st, 2011


As of yet, the House leadership has only proposed this solution and asked for the support of the Democratic leadership (which they will not get). All of those things which you listed as having not occurred have, indeed, not occurred.

And while I think the response is logical and reasonable (and a particularly amusing response to Pelosi’s rhetorical “where will we get the money?!?!”) this is petty change to Congress and likely it will come out of some other funding pocket.

But, yes, under my thinking, if an Administration refuses to defend a law passed by the House and Senate and singed into law by a President – based on its current ideological makeup – could then propose a budget that reduces the DOJ and applies those funds to “pursue their transient social agenda”.

For example, should the people elect a Republican President in 2012 who refuses to defend “Obamacare” in the courts, the Senate would be well within their rights to allocate funds away from the DOJ and towards some other entity which would defend the Senate’s vote.

And it wouldn’t even be an abomination against the procedures and sovereign nature of each branch of government.

I don’t judge “abominations” based on whether or not I agree with the law under question. I hope you don’t either.

Timothy Kincaid

April 21st, 2011


If I had you until “In response…” then I consider that my eloquence must be pretty compelling.



April 21st, 2011

An interesting argument. I’m not certain what I think about this whole mess. Although I will say that if the House’s paid counsel for this matter loses even one of these DOMA cases at SCOTUS than the victory will be all that sweeter. The best anti-DOMA case IMO that has the greatest chance of success at SCOTUS is the one seeking to strike down Section 3. Heck, conservatives should be cheering on efforts to strike that section down regardless of their views on SSM given the violations to federalism this involves.

Jim Burroway

April 21st, 2011

Your eloquence was compelling, but the “in response” paragraph is where you defend Boehner’s shifing of funds. Geven that you believe that “DOMA fund shifting is reasonable,” I find the conclusion, shall we say, much less compelling. In fact, I think it’s fundamentally flawed, since funds aren’t being “freed up.”

When prior administrations refused to defend laws passed by Congress, nobody shifted funds as a result.

Timothy Kincaid

April 21st, 2011


I’m sure that you will concede that the DOJ will be allocating substantially less to the defense of DOMA.

They may attend the trial and file limited briefs (of the “no opinion” variety), but there will be no spending for discovery, testimony, experts, visuals, research or any of the aspects of trials that burn through time and money. I dare say that the least expensive part of a constitutional trial is the trial itself.


April 21st, 2011

I admire Tim for his willingness to make a bold contrarian argument, but I’m not ready to come on board unless I have some sense as to how much money we are talking about.

I’m not sure whether Speaker Boehner has made a specific proposal as to how much would be defunded from DOJ and transferred to the DOMA defense effort, but if it’s anything close to a 1:1 ratio, then I think the decision is grossly unfair.

Clement and his team at King & Spalding are getting $520/hr., up to $500,000 total.

Do you think that DOJ attorneys cost the U.S. taxpayer $520/hr.? No. A better guess is somewhere in the range of $60-100/hr. in salary, benefits, and overhead.

If they take $500,000 away from the DOJ budget, or anything close to it, they wouldn’t just be defunding DOMA. They’d be exacting a huge penalty on the entire litigation effort of the Department. That’s not good, or reasonable, public policy; that’s petty vindictiveness.


April 21st, 2011

I don’t believe it is logical or reasonable.

There is no “logic” to defending DOMA at the standard that is required. The House is just running on emotion.

It’s not reasonable that the House Speaker should “defend power” by defunding the DOJ, even at the margin.

Back during the FMA fight, conservatives could barely brook DOMA’s constitutionality or the very framework that you propose, that the courts should decide. Krauthammer, for instance, is on record not that “the courts” should decide, but that “our judges” should decide, i.e. suggesting that the right approach is the stack the judiciary with antigay judges. Of course, that just makes a total mockery of your notion that there is nothing odd about hiring $520/hr counsel to defend the law. Why should we defend a system that the other side so openly disdains?


April 21st, 2011

btw, if Boehner tries to tuck an appropriate into a CR or otherwise, I hope that Democrats insist on a ‘balancing clause’ that creates an express right of action for gay servicemembers if DADT is ever re-instated…


April 21st, 2011

yeah, “appropriate” = “appropriation”


April 21st, 2011

Cynical attempts to pander to the worst instincts of one’s constituency is never justifiable. I have no doubt the attempt by John Boehner is just such a dishonest piece of theater. Dishonesty should’t be celebrated, it should be condemned.


April 21st, 2011

I agree that complaints about the price of the lawyers is a silly argument that goes nowhere. It’s pretty much back-of-the-sofa change for Congress, even at 500 an hour. However, you did at one point mockingly call Obama a not-so “fierce advocate” when he was defending DOMA, yet you find it reasonable when Boehner does the same. The fact is, it will be another generation or three before Dems and Repubs are equal on gay civil rights ( hopefully I’m not being too optimistic) and posts like these come off as strange and apologist. (Not meant to be a Nazi metaphor. It’s just as disgusting when gays do it as when Tea Partiers do it).

Jim Burroway

April 21st, 2011

I’m sure that you will concede that the DOJ will be allocating substantially less to the defense of DOMA.

I don’t think it is safe to concede that. With the House entering into the trial, the DOJ may in fact have to spend quite a lot of money to defend its position that the case requires heightened scrutiny, and that the House’s position is constitutionally incorrect. And for however long the House wants to drag out the case, the DOJ’s costs go up accordingly. This is substantially different from how the state of California refused to defend Prop 8. DOJ is not, technically speaking, refusing the defend DOMA. They are only saying that the only criteria they are willing to use is heightened scrutiny, and on that basis they don’t have a case.

None of Boehner’s position has anything to do with reality. As I said, the DOJ is not the house attorney that bills according to billable hours. It simply does not, and on that basis alone Boehner’s position defies logic. Boehner’s position is only reasonable if reasonable=grandstanding to the base. Only under that definition is it “reasonable.” Please don’t mistake reasonable with theater.

Donny D.

April 22nd, 2011

Our system is based on conflict between the separate branches of government, not smooth cooperation between them. It seems to me each branch needs at least to be able to keep control of the moneys it’s been allocated through the budgeting process if there’s to be true separation of powers.

Just on the issue of budgeting, I can’t imagine Congress gave Justice some set amount of money for the fiscal year to defend DOMA specifically. The money would have gone to Justice to use as it saw fit for certain general purposes (perhaps defending federal laws in court). Congress declaring that the DoJ should have performed a specific action, and using that as a reason to raid money out of DoJ’s already allocated budget, seems like a gross violation of any normal budgeting process as well as an abrogation of the autonomy of the Justice Department by Congress.

I can’t see the Boehner’s demand as anything but a partisan attack on Obama’s Justice Department. It’s the Boehner who’s unprincipled here, not those who oppose his possibly unconstitutional demand.


April 22nd, 2011

As an abstract argument, this post is fine. In this particular case, however, it’s flawed. Boehner’s contention that the courts should rule on the constitutionality of DOMA (aside from being hilarious, considering that Republicans, or at least one faction, are intent on dismantling the courts) ignores one critical fact: the courts have already found Section 3 unconstitutional and the administration, upon examination of the substance of the finding, has elected not to contest that ruling. This happens all the time — the parties decide not to appeal. Not every case winds up in front of the Supreme Court.

One statement jumped out at me: “But the defense of the House’s DOMA vote is not, de facto, an more of a bigoted action than would be the defense of any other vote.” I think you meant “per se” rather than “de facto” — in and of it self, the decision by congress to defend a law in court is as you say. But in fact, in this particular case, the decision to defend DOMA is not only evidence of bigotry, as is the law itself, but the attempt to “reallocate” funds from DoJ is punitive: as was pointed out in the comments above, not only does DoJ not operate that way, but Boehner et al. simply don’t know how much DoJ would have spent on defense of DOMA to begin with. It’s grandstanding, pure and simple, by a party that has vowed repeatedly to oppose anything the Obama administration does. I think this action by the House Republicans has to be seen in that light.

Reed Boyer

April 22nd, 2011

Oh, gosh, Timothy:

I was expecting that you’d once again be taking a provocative stance, and this was a pipperoo; absolutely dazzling.

You had ME until “I suggest that such a perspective is myopic and naïve.” Until then, your “eloquence” held me spell-bound, being a (metaphorical) snake to my rabbit.

Actually, I began to roil at the word “impact,” the use of which (instead of “affect”) sends screeching nails across the blackboard of my mind every time. But then my natural cynicism asserted itself, and I realized that you were very very right. We ARE naive to expect the bastards to do anything other than what they’ve done.

I tend to agree with Mike, who lacks my rhetorical flourishes and sets forth fact after fact after fact.

“In the long run,” “the process” and “the money” and “the balance of power” are the weapons of our enemies – at least the first two, as NOM has demonstrated far-too-often successfully these past years. Two out of three is enough.

One step forward, two steps back. Two steps forward, one step back. In case no one’s noticed, “sodomy laws” were ruled unconstitutional a few years ago, but they are still stubbornly on some states’ books (and their retention and reinstatement, in two states, are part of the GOP platform).

Scalia won’t die for another 20 years, so “the long run” will probably be longer than my projected life span. I can imagine the end of things, but I can’t see that far if they continue according to Timothy. In that regard, I am, indeed, “myopic”.

Unfortunately, the Supreme Court can wield its power over the other two branches. Citizens United, with its Lewis Carroll view of the law, is the present standard – and the new “reality.” One out of three is now enough.

On the bright side, take comfort (cold though it be) in the knowledge that you are very very very right. These things are “reasonable”. They can be rationalized. They are to be expected.

And all of that makes me feel very very very sick.

Timothy Kincaid

April 22nd, 2011


I don’t think it is safe to concede that. With the House entering into the trial, the DOJ may in fact have to spend quite a lot of money to defend its position that the case requires heightened scrutiny, and that the House’s position is constitutionally incorrect. And for however long the House wants to drag out the case, the DOJ’s costs go up accordingly. This is substantially different from how the state of California refused to defend Prop 8. DOJ is not, technically speaking, refusing the defend DOMA. They are only saying that the only criteria they are willing to use is heightened scrutiny, and on that basis they don’t have a case.

I very much suspect that your projections about the involvement of the DOJ are unlikely to materialize. I guess we’ll just wait and see.


April 22nd, 2011

The Attorney General is rightly using his discretion to decide the allocation of DoJ resources. Since he has properly concluded that the defense of Section 3 of DOMA is unwarranted, he can and should now re-allocate those resources to other more pressing issues, like prosecuting Goldman Sacks or Dick Cheney and George Bush.

If the House of Representatives wants to defend their own bigotry, let them take the funds from their own budget. They can postpone refurbishing some offices or cancel a few junkets to foreign golf courses.

No, Mr. Kincaid, shifting funds is not reasonable. Not even close.


April 22nd, 2011

This litigation seems to me to be an opportunity more than a danger. An opportunity, that is, to further discredit DOMA and its supporters in public opinion. To diminish the benefit of the doubt they operate with.

I mean, the argument in favor of DOMA is incoherent. It’s incoherent about the partitioning of federal vs. state authority. In the light of Lawrence it is incoherent about what is supposedly wrong with gay couples. It is the “defense” of forms of the institution of marriage that is internally incoherent and its coherence increases markedly when same sex couples are included in it.

Of course that is beatable if you can show, or the judges believe, that DOMA is an imperfect but necessary effort to conform to a Natural Order ordained by Nature Deity. That’s become fairly difficult as of late, though.

Alex Blaze

April 22nd, 2011

I didn’t have much of a problem when the DOJ was defending the law (well, I didn’t like it, but I didn’t expect much better) and when the DOJ said they’d stop it didn’t make me all that excited.

But I’m wondering how you justify the House hiring such expensive private counsel? The House has lawyers. They can give this case to those lawyers. That would be normal means. They didn’t have to get the most expensive lawyer in American to defend the law.

The argument, though, is blown out of proportion. I agree there. This isn’t going to bankrupt America. Money in the US is issued by fiat; it’s literally impossible to bankrupt America. The argument against this spending has been in the more “partisan jab” genre because if people making the argument stopped and thought about it, about how “balancing the budget” is nothing but an excuse to ruin the economy for working people, how the government has to run a deficit and every time it’s balanced the budget a recession has followed, then they wouldn’t be making this argument. But making fun of Republicans is too attractive.

On the other hand, I don’t think funds will be diverted from the DOJ. Try getting that one into a budget the Senate, House, and White House can agree to. It’s just another partisan jab.


April 23rd, 2011

Gee, NOM could use this as justification that gays and lesbians agree with Boehner. Shameful.


April 26th, 2011

While I´m not from the US, I´m guessing one flaw in your argument has already been stated by you: each power should be able to defend it´s laws and acts. The House of Representatives is not a power, the House and the Senate are the legislative power.

At least it should be like this. Can you imagine each house hiring a different law firm and taking opposite sides?

Technicalities aside, from afar we feel like your politics is nothing but animus on both sides. But I´m glad your moving forward. Good luck.

Timothy Kincaid

April 26th, 2011


No, not really.

They are defending a bill that passed. There would be no case to defend any position other than that of the bill.

In this situation the Senate has leadership – and probably a majority – that is not in favor of defending their vote. But they don’t have any legal case for arguing against the way that they voted in 1996.


May 15th, 2011

First off, the career lawyers who work for the DOJ does not get paid $520/hour so for you to suggest that they are properly funded to defend DOMA therefore when they decided to not defend it, the House should then received the fund to defend it is inherently flawed. What Boehner should’ve done is to utilize the House Bipartisan Legal Advisory Group to defend DOMA instead of hiring private legal counsel to defend it. I agree that the House has the authority to step up and defend the laws of the land in court it sees fit but let’s not forget that the legislative and executive are 2 separate branches. Boehner can ask, but Holder can also deny. The problem here is that it is clear that Boehner is doing this because of his party’s intention to appease the religious right. It wasn’t a bipartisan decision and it seems now that there wasn’t any thought that was put into making the decision.
It is also not about silencing opposing voices because there clearly is a better way to go about handling the issue. It has been suggested that the contract that Boehner signed committing the government into paying for the legal defense might very possibly be illegitimate or illegal as it violates the Antideficiency Act. Boehner unilaterally comitted the government into paying for the legal defense without having first verifying that the House has sufficient fund to cover the cost. It is a federal offense. The estimated total amount is $500,000 for this particular DOMA challenge but there are at least 12 other challenges and the cost could easily reach into the millions of dollars. Simply reprogramming the budget will not solve this equation.

I just want to say that I also agree with Boehner when he said that the constitutionality of any law should be determined by the courts. But for Section 3 of DOMA, it has already been decided by the court and it was ruled unconstitutional, albeit by the federal district court. Why appeal and waste taxpayers’ dollars when there’s no other new argument that can be presented?

Timothy Kincaid

May 16th, 2011


The House Bipartisan Legal Advisory Group consists of five people: the Speaker, the majority and minority leaders, the majority and minority whips. I doubt that Rep. Boehner and Rep. Pelosi have the time in their schedules or the unique skills to defend DOMA in the courts.

And I can assure you with confidence that the DOMA defense will not break the House.

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