DOMA funding shift is reasonable
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.”