House Speaker John Boehner's decision to use taxpayer dollars to defend the Defense of Marriage Act after the Obama administration determined it was unconstitutional may go down as the Gettysburg of the Lost Cause of Traditional Marriage on Capitol Hill -- and may have even contributed to DOMA's demise.
The fight will continue in the states, and conservative Republicans may even keep up the fight in Congress, but leadership is ready to throw in the towel. "While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances," Boehner told reporters today after the Supreme Court struck down DOMA. "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." States, not Congress.
“It sounds to me that that battle will be moving to the states,” John Cornyn, the No. 2 Republican in the Senate, said. Eric Cantor hit the same tone, adding, "the marriage debate will continue in the states." "Congressional Republican leaders are speaking with resounding unity: the same-sex marriage fight is ending on Capitol Hill," Politico's Jake Sherman and Ginger Gibson reported today.
The quick capitulation makes Boehner's decision to intervene in DOMA look all the more misguided. When the Department of Justice bowed out of defending DOMA in 2011, House Republicans intervened by hiring super-lawyer Paul Clement to defend the law on behalf of the House's Bipartisan Legal Advisory Group.
Democrats pointed out the obvious irony of a party crowing about the need to cut government spending hiring a lawyer who typically charges something like $900 an hour. The tab ended up costing taxpayers about $2.3 million, a far cry from the initial $500,000 budget.
If the House hadn't intervened, the court probably would have appointed a lawyer to defend DOMA, just as it appointed Harvard Law professor Vicki Jackson to argue a procedural matter in March. The effect would have been roughly the same -- taxpayer dollars used to to defend DOMA.
But at least in that scenario, Boehner wouldn't end up on the losing side of a court decision that affirmed an opinion held by the majority of Americans just as his party is trying to soften its stance on gay rights. And it may have saved taxpayers money, since few lawyers can charge what Clement does.
And maybe, just maybe, hiring Clement, a former solicitor general who has argued more cases before the Supreme Court since 2000 than any other lawyer in the country, helped push the court to set aside the procedural questions and rule directly on the merits of the law.
The first question the justices considered in the DOMA case was whether the House even had the right to defend the law, something that's typically the solicitor general's job. But Justice Anthony Kennedy wrote today in his majority opinion, "BLAG’s capable defense ensures that the prudential issues do not cloud the merits question." In other words, by hiring the best Supreme Court lawyer money can buy, Boehner helped ensure that the court ruled squarely on the merits of the law, and thus reject DOMA, instead of getting bogged down in procedural questions and possibly even tossing the case out on standing grounds.
Whether counterproductive or not, we will undoubtedly look back on the defense of DOMA as the high-water mark for anti-marriage equality efforts on Capitol Hill.