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Price tag on House defense of DOMA: $500k

From NBC's Shawna Thomas and Carrie Dann
As Congress continues its debate over how America’s tax dollars should be best used, lawmakers are arguing over a chunk of a half-million dollars intended to defend a law that about half of taxpayers don’t think is worth defending: the federal statute that deems same-sex marriage unconstitutional in the eyes of the U.S. government.

According to a contract provided by Democratic Leader Nancy Pelosi’s office, the House Administration Committee and the General Counsel entered into an agreement on April 14th with former Solicitor General Paul Clement to act as the House’s lawyer in cases involving the Defense of Marriage Act.

The price tag on the contract: About $520/hour with a cap of $500,000 on legal charges.  

In February, the White House delivered a surprising victory to gay rights activists when President Barack Obama directed the Department of Justice to abandon its defense of the act because, the administration argued, a part of the law violates the constitution.

But House Speaker John Boehner, calling that decision “regrettable” and politically divisive, argued in March that “the constitutionality of this law should be determined by courts – not by the President unilaterally.”  He announced then that the House would take up the legal responsibilities of defending the law in the absence of DOJ legal staff.

He’d also like DOJ to pick up the tab.

“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” Boehner wrote in a letter to House Minority Leader Nancy Pelosi asking her to join in his efforts to request the funds from the agency. “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.”

Pelosi responded by requesting the details of the cost of outside counsel, resulting in the publication of the $500,000 figure released today.

Attorney General Eric Holder has previously argued that the administration’s decision to stop defending DOMA does not mean that a pot of saved money is now available in DOJ’s coffers.

“I'm not sure we save any money, frankly,” Holder said at a hearing in March. “The people who would be defending the statute, were we to do that, are career employees of the Department of Justice, who will not be spending their time doing that; they will be spending their time doing other things.  I'm not sure that I see any savings as a result of the decision that I announced with the president.”

The law itself, which was enacted in 1996, appears to be losing popularity. According to a new CNN Poll, 51% of Americans believe same-sex marriages should be “recognized by the law as valid.”  That’s a 7% jump since this question was asked in April of 2009. 

Yesterday, Clement and his team filed a “Motion to Intervene” in their first case, Windsor v. United States, on behalf of the House.

In that case, the widow of a same-sex partner is suing to retrieve estate taxes she owed when the federal government did not recognize her marriage.

Edith Windsor and her now-deceased partner, Thea Spyer were legally married in Canada in 2007.  That marriage was recognized by their home state of New York. 

But when Spyer died, because her marriage was not recognized under DOMA, Windsor owed taxes on the estate totaling $363,053 – taxes that would not have been levied had the couple been married in the eyes of the federal government. 

Windsor’s case challenges the constitutionality of DOMA and simply put, asks the government to give her the money back. 

According to court documents, the team led by Clement is scheduled to make its first appearance before a judge on May 9th 2011.