John Boehner

Remember last year’s Pledge to America from the Republican Party? It promised three times to make government “more transparent.”

Well, apparently, that pledge had a hidden expiration date. Attorneys for Republican House Speaker John Boehner’s Bipartisan Legal Advisory Group (BLAG) informed a federal judge September 9 that BLAG “prefers not to participate” and “declines to consent” to videotaping of courtroom proceedings of its attorneys defending the Defense of Marriage Act (DOMA) in court.

The case in question is Golinski v. OPM, in which Karen Golinski, an employee of the 9th Circuit federal appeals court, is suing to obtain health coverage for her spouse. The federal court provides such benefits to the spouses of straight employees and was prepared to provide them to Golinski. But the U.S. Office of Personnel Management, headed by openly gay appointee John Berry, instructed the court’s insurance company, Blue Cross/Blue Shield, to deny Golinski’s claim. OPM reasoned, at the time, that DOMA prevented it from providing the benefits to Golinski’s same-sex spouse.

Since then, of course, the Obama administration announced that it believes the federal law banning any recognition of legitimate marriages between same-sex partners is unconstitutional. That prompted Speaker Boehner to exercise the House’s option to defend the law itself. He hired an outside attorney—former Solicitor General Paul Clement—to do so and BLAG became an “intervenor-defendant” in the case. That means that, while OPM is technically the primary defendant, the court is allowing the BLAG attorney to argue in defense of the law.

But it was House General Counsel Kerry Kircher who submitted the two-sentence response to the court request to videotape the proceedings and make the available on the court’s website. Kircher offered no explanation for his response. And even though other parties to the litigation agreed to the videotaping—including the U.S. Department of Justice—U.S. District Court Judge Jeffrey White said the recording would not be made.

Tara Borelli, an attorney for Lambda Legal Defense that is representing an employee challenging DOMA, called the BLAG response “outrageous.”

“It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination,” Borelli said. “…”We believe the harm DOMA causes daily deserves an open and public hearing, as do the arguments put forth by those using taxpayer dollars to try to perpetuate this discrimination. It is telling that the proponents of discrimination are unwilling to subject their arguments to a full and public airing.”

There are two issues in the case when it is taken up in a federal district courtroom in San Francisco October 21. First, there is BLAG’s motion to have Golinski’s lawsuit dismissed. Second, there’s the motion by Lambda to have the judge declare, on summary judgment, that Golinski should be able to receive the benefits.

OPM, represented by the U.S. Department of Justice, has argued that the court should not dismiss Golinski’s lawsuit and that it believes DOMA is unconstitutional.

DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.

Golinski v. OPM is one of about a dozen federal lawsuits challenging DOMA in whole or in part.

Kircher’s refusal to consent to videotaping of the court proceedings contradicts one of many pledges the Republican Party included in its Pledge to America, released in September 2010. The pledge expressed the party’s commitment to “fight to ensure transparency and accountability in Congress and throughout government.”

“We pledge to make government more transparent in its actions, careful in its stewardship, and honest in its dealings,” stated the Pledge, in another section. And, on a third occasion, the Pledge promised “make Congress more open and transparent.”