Box Turtle Bulletin

Anti-Gay Tea Party Congressman Loses Primary Race

In a surprising development, Tea Party darling Rep. Tim Huelskamp (R-KS) lost his primary bid for re-election to congress. Huelskamp was so tea-baggy that the representative from Kansas’s vast first district representing 63 farming counties voted against the Farm Bill because food stamps! He also voted against the Export-Import Bank, which played a huge role in promoting farm exports. His disruptive antics got so bad that he got kicked off the Agricultural Committee — making it the first time Kansas went unrepresented on the farm committee for more than a century.

And by the way, he’s extremely anti-gay, although that likely had zero effect in this campaign.

Anyway, the surprise wasn’t that Huelskamp lost. Pols showed that the primary race was very close to political novice Roger Marshall. Which was surprising when those polls first came out. But Huelskamp was, after all, an incumbent backed by the Koch brothers, so it seems that most people thought he could still pull this one out. So the surprise now isn’t just that he lost, but that he was so soundly thrashed:

Huelskamp, first elected to Congress in 2010, lost to Roger Marshall by a large 13-point margin in a year that has seen just three House incumbents toppled. Marshall will likely win the general election in November to represent the 1st Congressional District, as the district is heavily Republican and there is no Democratic challenger.

Marshall was the candidate of the establishment, and it’s unclear if his win portends anything larger for Republican House members who many fear will be damaged by the presidential candidacy of Donald Trump. So far during the primary season, worries that angry voters would boot out incumbents have not materialized.

The race became increasingly close in the final weeks leading up to the primary, as well-funded conservative and business groups poured in $1.5 million to shape the outcome.

Marshall, an OB/GYN, was supported by the U.S. Chamber of Commerce and Ameritrade founder Joe Ricketts’s superPAC. Perhaps more critically, Marshall was also supported by the Kansas Farm Bureau. Huelskamp received support from Club for Growth, Heritage Action, and the Koch brother’s superPACs.

The Freedom Caucus, which is what Congressional tea partiers call themselves, are blaming GOP leaders for Huelskamp’s loss:

Republicans need to be unified behind conservative principles to stop the Obama/Clinton agenda,” Freedom Caucus Chairman Jim Jordan (R-Ohio) said in a statement. “The House Republican leadership’s opposition to Tim Huelskamp significantly damaged the ability of House Republicans to do that.”

House Republican leaders don’t control outside spending and had nothing to do with the nearly $2 million in anti-Huelskamp ads that poured into his district from the U.S. Chamber of Commerce and the Ricketts family’s Ending Spending political group.

But that’s not the crux of the caucus’ anger. Huelskamp approached Ryan seeking a public assurance that he could reclaim his seat on the House Agriculture Committee next year, a critical position for his farm-heavy district. Boehner (R-Ohio) backed an effort to remove Huelskamp from the panel three years ago as punishment for repeatedly defying leadership in big votes, something Ryan promised he would never do.

The loss of his committee seat was likely Huelskamp’s undoing: Marshall attacked him relentlessly for being ineffective and putting “rigid” conservative values over the needs of his constituents.

The Freedom Caucus got heavily involved in the back and forth with leadership, imploring Ryan to go public with an alleged commitment to reinstall Huelskamp on the panel. But the speaker declined.

This tmeans it’s probably a good time to break out the popcorn. Or a pleasant merlot:

Turns out Speaker Boehner is indeed enjoying Kansas primary night. Just received this from former staffer! pic.twitter.com/hIzmFt8hn0

— carl hulse (@hillhulse) August 3, 2016

Huelskamp reintroduced the Federal Marriage Amendment in Congress in 2013 immediately after the U.S. Supreme Court overturned the so-called “Defense of Marriage Act”. The FMA would ban same-sex marriage nationwide. Huelskamp reintroduced the proposed amendment in February 2015 at the start of the 114th Congress. As a state Senator, he authored the Kansas 2005 constitutional amendment that banned same-sex marriage and civil unions in that state.

Boehner resigns

John Boehner, the Speaker of the House, has announced his resignation. (Tribune)

With Congress in turmoil, House Speaker John Boehner abruptly informed fellow Republicans on Friday that he would resign from Congress at the end of October, stepping aside in the face of hardline conservative opposition that threatens an institutional crisis.

Boehner has faced increasing criticism from the more conservative elements within the Republican Party caused by his reluctance to shut down the government over Planned Parenthood funding. Boehner is seen as the quintessential establishment Republican by the Tea Party elements and an impediment to their wild west style of politics.

A constant focus of conservatives’ complaints, Boehner was facing the threat of a floor vote on whether he could stay on as speaker, a formal challenge that hasn’t happened in over 100 years. That was being pushed by tea partyers convinced Boehner wasn’t fighting hard enough to strip Planned Parenthood of government funds, even though doing so risked a government shutdown next week.

“It’s become clear to me that this prolonged leadership turmoil would do irreparable harm to the institution,” Boehner told a news conference several hours after making the announcement to his rank and file. “There was never any doubt I could survive the vote, but I didn’t want my members to go through this, I didn’t want this institution to go through this.”

In all likelihood, Boehner could withstand a floor vote. But I suspect that to do so he would require not only the support of less extreme Republicans, but that of Democrats who have nothing to gain from Boehner’s replacement.

This resignation is not good news for our community. While the Speaker has been portrayed as The Enemy by many gay writers, in reality his language and tone have been civil and respectful and have signalled that one can be opposed to our objectives without engaging in hateful diatribe or invective.

Probably Boehner’s most notorious behavior was hiring and funding counsel to bolster the Defense of Marriage Act. But, as I said at the time, defense of a law by Congress is not an unreasonable action, irrespective of what one believes about that law.

And it should be noted that during the defense of DOMA, Boehner did not attack gay couples or wail about the sanctity of the time honored definition of marriage as the union of a man and a woman, choosing instead to say that “The constitutionality of this law should be determined by the courts.”

Interestingly, in the middle of the battle, federal bankruptcy judges in the Central District of California declared DOMA to be a violation of the US Constitution. Boehner decided not to appeal the decision as it was unlikely to be a vehicle through which the Supreme Court could rule on DOMA’s constitutionality in a broad sense.

Upon the Supreme Court ruling in Windsor that DOMA was a violation of the US Constitution, Boehner announced his disappointment but immediately ceased defense of any federal laws or measures that discriminated against same-sex couples. Nor did he or the House involve themselves in the Obergefell or other state marriage cases.

This is not to say that Boehner was an ally to the community nor that as Speaker he advanced our goals. That is not the case. Boehner supported DADT and continues to express his beliefs that marriage should be limited to heterosexuals.

But he has also not been a derisive opponent. And while he did not encourage the GOP to adopt equality, he expressed that the party should be inclusive of gay people and in the last election cycle he traveled to support gay Republican candidates – even though they disagreed with him about marriage and other issues.

It will be interesting to see who will replace the Speaker. Though it is possible that maverik moderates may refuse to vote for an extremist, it is more likely that the next Speaker of the House will be a Tea Party activist. And should that be the case, we may be subjected to a season in which the House of Representatives debates – or perhaps even supports – efforts to change the Constitution to institute bigotry. Almost certainly religious preference laws will be proposed so as to encourage and protect discrimination.

It’s likely to get nasty.

House GOP won’t be involved in SCOTUS marriage hearing

In Spring of 2011, President Obama and Attorney General Holder announced that the US Justice Department would no longer provide legal defense of the Defense of Marriage Act (Section 3) in federal court challenges, as they found it to violate the provisions of the US Constitution. The US Senate also declined to present a defense of the law.

The US House of Representatives, under the leadership of Speaker of the House John Boehner, hired legal representation and provided defense of the law. After several battles, the case came before the Supreme Court of the United States, and in June 2013 Section 3 of DOMA was held to be unconstitutional.

At that time, Republican leadership in Washington relinquished defense of DOMA and declared the matter settled. Boehner indicated that his body would not be engaging in efforts to argue the merits of other statutes or laws in regards to marriage but would act under the presumption that the Supreme Court had made its intent known.

And, for all practical purposes, the issue of same-sex marriage has been a settled one in the Nation’s Capital. It took a while for the administration to identify all areas in which discrimination continued, but the remedies did not face organized opposition.

Continuing in that state of mind, Boehner has now determined that the House will not interfere in the marriage ban appeal now before the Supreme Court nor will the GOP leadership seek to influence its decision. His language also suggests that he will not entertain notions about the invalidity of the court’s ultimate decision. (Blade)

“I don’t expect that we’re going to weigh in on this,” Boehner said. “The court will make its decision and that’s why they’re there, to be the highest court in the land.”

Of course individual GOP members are likely to file an amicus brief supporting discrimination, and some may do so jointly. But they will not do so under the authority of the House of Representatives.

Boehner support gay GOP candidates

Sometimes the extra-special brand of crazy right-wing nutcases are useful. Like, for example, Virginia Representative Randy Forbes. (Politico)

Forbes has waged a lengthy crusade to convince his colleagues and the National Republican Congressional Committee brass they shouldn’t back some gay candidates. His efforts on Capitol Hill were described to POLITICO by more than a half-dozen sources with direct knowledge of the talks.

Republican leadership is only in the infancy stage of wooing gay voters, but they recognize that to be a viable party in the future they need to shed the anti-gay rhetoric and ideology (among other positions). And they have taken steps, including putting party support behind a handful of gay GOP candidates.

Yet they also recognize that this will not sit well with a segment of their constituency, so they are not trumpeting their support of gay candidates on a broad scale. However, Forbes’ obnoxious hate-filled grandstanding forced the hand of leadership.

On Thursday, following POLITICO’S report, Speaker John Boehner said his party should support gay Republican congressional candidates.
…
Many Republicans seem willing to back DeMaio. Rep. Darrell Issa, a senior California Republican who has endorsed him, said that “he will be supported by the NRCC when he wins the primary.”

“I will see to that,” said Issa, who chairs the House Oversight and Government Reform Committee.
…
Asked about Speaker John Boehner’s policy toward gay candidates, an aide pointed to several contributions the Ohio Republican made to Tisei during the past election cycle. Boehner also visited Boston to raise money for Tisei during the summer of 2012.

This is, of course, no indication that the party as a whole is supportive of gay issues or that it is going to become so overnight. It does, however, suggest that the leadership now recognizes that it can no longer be associated with blatant bigotry and it sends a signal that the power of the far right within the party may be waning.

House Republicans stop anti-marriage efforts

In a slightly oddly worded filing, the House Bipartisan Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, has ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. The BLAG’s last-minute filing in a case involving service member’s marital benefits was the venue through which this retreat was announced. (BuzzFeed)

The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.

In other words, while Windsor only addressed DOMA3, not the myriad of laws that are written such that they limit application to male-female marriage, the decision on DOMA3 made clear the court’s intent. And so – unlike the Proposition 8 supporters in California – the Republicans in the House will not spend any more time or money fighting the minutia in court.

This is a bit further than I expected.

The broad stroke exclusion of gay couples found in DOMA3 was struck down as unconstitutional. This does not mean, from a legal perspective, that every exclusion of same-sex couples is unconstitutional. The BLAG could have continued on a case-by-case basis to argue that while broad exclusion is not allowed, in the instances at question there are good and valid governmental interests in upholding unequal laws and it’s possible that they would prevail in some.

So this decision to pull out and the language utilized suggests that more than just a legal determination has been made. This also heralds a shift in political will.

Today is Boehner’s deadline to oppose service member benefits

BuzzFeed reminds us that not all of the legal questions relating to federal same-sex marriage benefits have been answered.

The House Republican leadership faces a Thursday deadline to decide if it will continue to defend laws that limit veterans benefits to opposite-sex couples in the wake of the Supreme Court ruling striking down a similar provision in the Defense of Marriage Act.

“We’re reviewing the impact of the Supreme Court’s decision, and don’t have any announcement to make at this time,” House Speaker John Boehner’s spokesman, Michael Steel, told BuzzFeed on Wednesday when asked if the defense of the veterans’ statutes would continue.

This is a no-win situation for Boehner.

The Republican Party has a real problem on their hands when it comes to marriage equality. The country in increasingly supportive and even many of those who oppose equality don’t want strident anti-gay action to be taken. But “the base” of the party is strongly opposed to equality, so for the last year Boehner has “defended” DOMA (while trying hard never to discuss it and, in some instances, not even filing even the most flimsy of responses).

This particular situation is even more troublesome for Republican leadership. Service members are also a base of the Republican Party, and opposing military benefits sets one loyal party group against another.

So here’s betting that Boehner woke up late, forgot his watch, lost his briefcase, and got tied up in meetings all day and just, gosh darn it, just didn’t have time to file a motion today.

DOMA Splits GOP Leadership and Rank-And-File

House Speaker John Boehner (R-OH) issued this brief statement after the DOMA decision was announced:

Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law.  The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally.  While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances.  A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman

As BTB’s Timothy Kincaid pointed out, many are seeing his statement and others from Sen. John Cornyn (R-TX) and Senate Minority leader Mitch McConnell (R_KY) as a sign that Republican leadership isn’t eager to take up opposition to marriage equality in the nation’s Capital. They can see the tea leaves as well as anyone. Well, almost anyone. One rank and file Congressman looked at Boehner’s statement and saw things differently:

Rep. Tim Huelskamp (R-Kan.), speaking at a Tuesday meeting between reporters and conservative lawmakers, said he will file a constituional amendment in Congress late this week to restore DOMA. Huelskamp said he will be joined by other conservatives.

“My response to this [decision] will be later this week to file a federal marriage amendment,” he said.

When asked if leadership is likely to support efforts to restore DOMA, Huelskamp said he was encouraged by the Boehner’s statement after the ruling. “I give tremendous credit to the Speaker of House,” Huelskamp said.

Whatever Huelskamp may think he saw in Boehner’s statement, I think it’s safe to say however that DOMA’s revival will be DOA as soon as it hits the House floor.

Meanwhile, Florida Senator and possible 2016 presidential contender Marco Rubio strikes a different tone:

I believe the Supreme Court made a serious mistake today when it overstepped its important, but limited role.  I do not believe that President Clinton and overwhelming bipartisan majorities of both houses of Congress acted with malice or intent to ‘demean’ a class of people when they adopted a uniform definition of marriage for the purposes of federal law.  The Court should not have second guessed the will of the American people acting through their elected representatives without firm constitutional justifications.  The sweeping language of today’s majority opinion is more troubling than the ruling itself as it points to further interference by the Court in the years to come.

For millions of Americans, the definition of marriage is not an abstract political question, or some remote legal debate.  It’s a deeply personal issue. It’s an issue that I have grappled with as well.

I believe that marriage is a unique historical institution best defined as the union between one man and one woman. In the U.S., marriage has traditionally been defined by state law, and I believe each state, acting through their elected representatives or the ballot, should decide their own definition of marriage. For the purposes of federal law, however, Congress had every right to adopt a uniform definition and I regret that the Supreme Court would interfere with that determination.

Boehner, McCain Say They’ll Never Support Marriage Equality

Yesterday, House Speaker John Boehner (R-OH) said that, unlike Sen. Rob Portman(R-OH), who announced that he now supports marriage equality after his son came out to him as gay, Boehner said that he “can’t imagine” ever changing his opposition to same-sex marriage:

I believe that marriage is the union of one man and one woman,” Boehner said on ABC News’s “This Week With George Stephanopoulos.” “It’s — it’s what I grew up with. It’s what I believe. It’s what my church teaches me. And — I can’t imagine that position would ever change.”

…”Listen, Rob’s a great friend and a long-time ally.  And — I appreciate that he’s decided to change — his views on this.  But I believe that marriage is a union of — of a man and a woman, said Boehner.

Sen. John McCain (R-AZ) also spoke on the issue. McCain had opposed the Federal Marriage Amendment, but only because he believed that it would have infringed on states’ rights. He voiced support for California’s Prop 8 and Arizona’s Prop 102 in 2008 as he ran for President. On Friday, McCain told CNN’s Anderson Cooper that he wouldn’t be changing his mind on marriage equality anytime soon:

“I respect anyone else’s decision and we all learn in life and grow and mature. I have changed my position on other issues in my life, but on this one, I had not contemplated changing my position,” he said.

So that brings me to this point: For the life of me, I will never understand, not in a million years, the hectoring and anger from some in the gay community that greeted Portman’s change of position. Look, I’m as dyed-blue big-D Democrat as they come. If I were an Ohio resident, I’d never vote for the man, donate to his campaign, or encourage anyone else to vote for him. I wouldn’t rush out to throw him a parade, but if the Columbus Pride organizing committee wants to make him Grand Marshal, I wouldn’t object.

But that said, any time someone — anyone — who once opposed marriage quality and changes his position, that’s one person less  working against us. You’d think the implications of that would be obvious, but since it apparently isn’t I’ll spell it out. All of the legislative and electoral gains have come about because people who actively opposed us stopped doing that, and some of them now support us. Look at Maine: In 2009, voters there shot down marriage quality 53% to 47%. In three short years, six percent of Maine’s voters pulled a Portman; they switched form opposing marriage equality to supporting it, and voters approved it by the same 53% to 47% margin that they voted it down three years before.

Was Portman “selfish” for supporting same-sex marriage only after his son came out to him? Maybe. Probably. But more importantly, who the hell care? Should we poll Maine’s electorate and throw out the “selfish” votes there also? Of course not, because in politics a win is a win. And we win every time someone changes from opposing us to supporting us. Or even, as a half measure, goes from opposing us to not opposing us — that’s a half-win in my book. Portman is now one more vote in a nascent movement to repeal DOMA in Congress if the Supreme Court fails to strike down Section 3. (And besides, there’s also Section 2 that remains unchallenged so far.) Portman may also be an important voice should equality advocates in Ohio launch a ballot challenge to that state’s constitutional amendment banning same-sex marriage, a move that is likely to occur, I think, sometime in the next five years.

Each move on the issue is important. But for those who want to complain and kvetch about Portman’s change, I guess they can always take comfort in knowing that McCain and Boehner won’t let them down.

Boehner’s DOMA Pricetag Reaches $3 Million

The House’s so-called Bipartisan Legal Advisory Group (BLAG) has upped the cap for their defense of the Defense of Marriage Act (DOMA) to a cool $3 million. The reason that I’m calling BLAG the “so-called Bipartisan” group is that only one party is driving this train and keeping the other party completely out of the loop. On January 4, the House adopted its rules for the 113th Congress, parts of which authorizes BLAG to intervene in other cases challenging DOMA and to speak for the House before the Supreme Court. At that point, the disclosed price tag was still $2 million, a cap that was revealed in December.

But today it was revealed that the cap was secretly raised by a staggering 50% to $3 million soon after the rules were adopted on January 4. After news broke about the increase, House Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD), the only two Democratic members of the group, responded in a letter to House Speaker John Boehner (R-OH):

“We wish to strongly reaffirm our objections to the repeated actions by the Republican leadership to secretly and dramatically increase the contract between the House and outside counsel in arguing to uphold the discriminatory Defense of Marriage Act (DOMA) in more than a dozen cases,” reads the letter from House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.).

“It is the height of hypocrisy for House Republicans to waste public funds in one breath then claim the mantle of fiscal responsibility in the next,” the letter continues. “With Republicans willing to take our economy and our country to the brink of default in the name of deficit reduction, there is simply no excuse for any Member of Congress to commit taxpayer dollars to an unnecessary — and futile — legal battle.”

House GOP leaders took over the defense of DOMA in Federal Court last year after the Justice Department determined that the law merited heightened scrutiny and was unconstitutional under that standard.

The Daily Agenda for Friday, October 7

TODAY’S AGENDA (OURS):
Campus Pride College Fair and Prep Day: Boston, MA. Campus Pride’s College Fair is an opportunity for LGBT students and their families to discuss educational opportunities with participating LGBT-affirming colleges and universities. The fair features expert advice about LGBT-friendly colleges, scholarship resources and even effective tips for campus visits. The Northwest Region College Fair takes place today at Boston’s City Hall, from 1:30 p.m. to 4:00 p.m. More information can be found here. Future College Fairs will take place in Los Angeles (Oct 15) and New York (Nov 4).

AIDS Walks This Weekend: Columbus, OH; Indianapolis, IN and Kent/Sussex, DE.

Pride Celebrations This Weekend: Atlanta, GA; Orlando, FL; Rio de Janeiro, Brazil and Tucson, AZ.

Also This Weekend: Iris Prize Film Festival, Cardiff, UK.

TODAY’S AGENDA (THEIRS):
Values Voter Summit: Washington, D.C. The Family “Research” Council, one of only a handful of organizations tracked by the Southern Poverty Law Center for being an anti-gay hate group, kicks off its annual Values Voter Summit in the nation’s capital this morning with a breakfast talk by Mat Staver, Chairman of Liberty Counsel and Dean of Liberty Unversity’s Law School. Members of Staver’s Liberty Counsel and law school staff have been implicated in the Isabella Miller-Jenkins kidnapping case, while teachers have instructed law students to ignore “man’s law” in favor of “God’s law.” And so as you might expect, the Summit just goes straight downhill from there. Other speakers include House Speaker John Boehner (R-OH), House Majority Leader Eric Cantor (R-VA), Sen. Jeff Sessions (R-AL), and GOP Presidential candidate Sen. Rick Santorum. And all of that is before lunch, when voting begins for the Summit’s straw poll. Afternoon speakers include GOP presidential candidates Herman Cain, Texas Gov. Rick Perry, and former House Speaker Newt Gingrich, plus Rep. Steve King (R-IA) and Sen. Roy Blunt (R-MO). The evening plenary session features another GOP presidential candidate, Rep. Michele Bachmann (R-MN), as well as Louisiana Gov. Bobby Jindal. The craziness just goes on and on and on through Sunday morning.

Exodus International Florida Regional Conference. Leesburg, FL. Exodus International will conduct a two-day conference with the theme “Chosen for Freedom,” beginning today and continuing through Saturday. The conference’s featured speakers include Exodus International president Alan Chambers, former Exodus president Joe Dallas, and former Exodus vice president Randy Thomas. Also speaking is Dr. Julie Hamilton, a former president of the National Association for Research and Therapy of Homosexuality (NARTH) and whose book, Handbook of Therapy for Unwanted Homosexual Attractions, includes a final chapter by discredited ex-gay activist George Rekers. As we reported in our original investigation of Rekers’s “treatment” of four-year-old Kirk Murphy, Rekers claimed that he had successfully turned the “effeminate pre-homosexual” boy into a straight man. He built his entire career on that supposedly groundbreaking success story. Except there were a couple of problems: Kirk grew up to be gay, and he ultimately committed suicide over the lifelong conflicts he struggled with as a result of that therapy. Yet in Hamilton’s book, Rekers boasted that Kirk “had a normal male identity,” six years after Kirk took his life. Hamilton’s book with Rekers’s boast is still on sale at NARTH’s web site, and I have no doubt that it will also be available at the conference, which takes place today and tomorrow at the First Baptist Church in Leesburg, FL.

Minnesota Anti-Marriage Strategy and Briefing Session: Bloomington, MN. The Minnesota Faith and Freedom Coalition, supporters of the latest proposed constitutional amendment to make same-sex marriage even more illegaler in the Gopher state, will hold a Strategy and Briefing Session at the Doubletree Inn in Bloomington, MN this morning from 10:00 a.m. to 11:30 a.m. Invited speakers include GOP presidential candidate Rep. Michele Bachmann (R-MN) and former Christian Coalition honcho Ralph Reed.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

Boehner Triples Outlay For Defending DOMA

Despite an era of massive cost cutting in Congress, U.S. House Speaker John Boehner (R-OH) has tripled the original $500,000  cost cap for the legal defense of the Defense of Marriage Act to $1.5 million:

According to recently approved contract modification dated Sept. 30, House General Counsel Kerry Kircher has agreed to pay Bancroft LLC private attorney Paul Clement a sum not to exceed $750,000 to defend DOMA, but this cap may be raised to $1.5 million under written notice.

“It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000.00 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 specifying that the General Counsel is legally liable under this Agreement for a specific amount,” the contract modification states.

Democrats on the Committee of Administration have blasted the increase, and charged that the contracting process lacked “any semblance of transparency.”

New York’s new role

One of the consequences of marriage equality that doesn’t get much attention in the debate is the way in which it impacts a state’s involvement in lawsuits. And yet, this is no small matter.

States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.

But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.

This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.

And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.

Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.

And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.

Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.

But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).

As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.

From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.

This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.

Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.

Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.

But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”

Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.

Boehner lets DOMA ruling stand

On Monday the judges of the Central California Division of the United States Bankruptcy Court ruled that DOMA Section 3 is in violation of the US Constitution
. House Speaker John Boehner, who has hired attorney Paul Clement to defend the bill and instructed the House General Counsel to oversee the defense, has indicated that there will be no appeal of this decision. (LATimes)

A spokesman for Mr. Boehner, Brendan Buck, said the ruling would not be appealed.

“Bankruptcy cases are unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided,” Mr. Buck said. “Obviously, we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”

DOMA funding shift is reasonable

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.”

Boehner Prohibits Law Firm Employees From Advocating for DOMA’s Repeal

Chris Geidner, the Metro Weekly’s legal eagle, has been pouring through the contract signed by House Speaker John Boehner (R-OH) and the law firm of King & Spalding, who he contracted to defend the Defense of Marriage Act in Federal court. Geidner found a clause which appears to prohibit all of King & Spalding’s employees, including non-lawyers, from advocating for the Respect for Marriage Act, a bill which would repeal DOMA:

The paragraph in question states that “partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”

Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.

Jon Davidson, the legal director for Lambda Legal, told Metro Weekly that the provision might be illegal in California and other states, and would expose King & Spalding to civil liability. This provision appears to bar people from legitimate activities unrelated to their work at the law firm.

King & Spalding is headquartered in Atlanta. Local LGBT advocates express disappointment over King & Spalding’s contract with Boehner. They note that King & Spalding have donated money to the Stonewall Bar Association, promotes its support for the ACLU’s LGBT and AIDS project, and has provided some pro bono work in unspecified cases in support of LGBT issues.