Paul Clement

Many people read late last month that Republican leaders in the U.S. House authorized tripling the attorney fees for an outside legal team “to litigate the constitutionality of Section III” of the Defense of Marriage Act (DOMA). Far fewer likely read Footnote Number 3 in that legal team’s September 22 brief. That footnote indicated that the legal team, led by former Solicitor General Paul Clement, plans to defend DOMA “only with respect to its constitutionality under equal protection.”

Given that a federal district court judge struck down DOMA both on equal protection grounds and Tenth Amendment state sovereignty, one might argue that House Republican leaders have agreed to triple the spending for half the work.

The footnote was part of a 60-page brief prepared by Clement and associates at the law firm of Bancroft, which litigates “high-stakes” cases. (In fact, on October 24, Clement filed an appeal brief to the U.S. Supreme Court on behalf of two dozen states challenging President Obama’s Affordable Care Act.)

The DOMA brief Clement filed four weeks earlier was to the First Circuit U.S. Court of Appeals on behalf of the U.S. House Bipartisan Legal Advisory Committee (aka BLAG). Republican House Speaker John Boehner, through his leadership operatives, hired Clement to—as the contract states—“litigate the constitutionality of Section III” of DOMA. Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The litigation in the First Circuit is a consolidation of three cases challenging Section 3 of DOMA: Gill v. Office of Personnel Management, Hara v. OPM, and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services. The first two cases were brought by Gay & Lesbian Advocates & Defenders; the latter by the state. (This article refers to the consolidated cases as Gill.) It is very likely to be the first litigation to test DOMA before the U.S. Supreme Court.

One week after Clement filed the brief, the Republican Chairman of the Committee on House Administration approved tripling the amount of money the U.S. House will pay Clement’s firm from $500,000 to $1.5 million—unless, of course, they later agree, through “a written agreement,” to pay more.

The cost of things is a big concern for the Republican leadership and for Clement. In his brief, at page 42, he cites it as one of the reasons Congress had good reason to treat same-sex married couples differently than straight married couples.

“Wholly apart from the broader debate about the definition of marriage,” wrote Clement, “Congress had ample rational basis for preserving the traditional definition in allocating federal burdens and benefits: DOMA preserves both the public fisc and the legislative judgments of earlier Congresses that used terms like ‘marriage’ and ‘spouse’ to refer to traditional marriages alone.”

One problem with this argument is that Congress passed DOMA in 1996, when the federal deficit and debt were on their way down. One might argue that, since the passage of DOMA, the federal deficit and debt have gone up significantly. But one need not go down that road to refute the “protect the fisc” argument.

The non-partisan Congressional Budget Office reported in 2004 that repeal of DOMA would actually save the federal government money. Looking at 2000 Census data, CBO “assumed that about 0.6 percent of adults would enter into same-sex marriages if they had the opportunity.” It then calculated that outlays for Social Security, veterans benefits, and the like, would be reduced “by about $100 million to $200 million annually from 2010 to 2014.” Medicaid spending would be reduced by about $50 million a year through 2014 and by $400 million per year starting in 2014. And tax revenues, it said, would be increased about $700 million annually between 2011 to 2014.

Williams Institute scholar Gary Gates says the CBO estimate of the number of same-sex couples who would marry was probably too high.

“Right now,” he said, “individuals in same-sex couples represent 0.55 percent of all adults in the U.S. So, the CBO assumption that 0.6 percent of adults would enter into marriages if they had the opportunity essentially assumes that more than all individuals in same-sex couples right now will marry a same-sex partner. That’s unlikely.” Data from Massachusetts, said Gates, predicts “a little less than 70 percent” of same-sex couples have married.

“Another problem with the CBO analyses is that it uses Census 2000 figures for same-sex couples,” said Gates. The Census Bureau has, since 2000, revised its estimate downward. Gates said a more accurate estimate of the individuals in same-sex couple households in 2000 is 0.4 percent.

What that means, of course, is that, if recognizing same-sex marriages could help reduce federal spending, the savings might not be quite so high as the CBO report in 2004 suggested.

And there was one area of federal spending the CBO identified as potentially increasing, should same-sex marriages be recognized: federal employees receiving health insurance under the Federal Employees Health Benefits (FEHB) program for their spouses. The increase, said CBO, would be “less than $50 million a year through 2014.”

So, $50 million more in spending for federal employee health insurance but $700 million more in tax revenues and $550 million in annual savings –for a gain of about $1.2 billion.

A response brief filed by the Massachusetts Attorney General’s office on October 27 points out another powerful irony of Clement’s “public fisc” argument: “Congress did not investigate, let alone hear testimony about, DOMA’s effect on the myriad federal programs and laws at issue. Despite asserting financial savings as a purported rationale, the House rejected a proposed amendment that would have required budgetary analysis by the General Accounting Office.”

And, as GLAD’s response brief October 27 points out, Clement “never explains why gay men and lesbian should bear the burdens of the supposed cost-cutting.”