Putting a Price on Discrimination

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The Huffington Post has obtained a copy of the agreement retaining the law firm of King & Spalding to step in to defend section 3 of the federal Defense of Marriage Act. (Click here and here for prior posts on President Obama’s decision to order the Justice Department to cease defending the law in court.)

The agreement places an initial cap on the cost of defending DOMA at $500,000. As Joe Solmonese from HRC points out, with the federal government being charged a “blended rate of $520 per hour” and the large number of lawsuits (he says, at least nine) challenging DOMA already pending, it would not take long at all to bust through this cap. Under the agreement, the cap can be raised by written agreement with the approval of the Committee on House Administration of the U.S. House of Representatives. Given the open-ended nature of this commitment to pay private lawyers to defend DOMA in court, it seems that the Republican leadership in the U.S. House of Representatives considers the ability to continue discriminating against the LGBT community to be truly priceless.

(By way of a tax aside, I would note that the agreement with King & Spaulding engages them to defend DOMA in the bankruptcy courts, federal district courts, federal courts of appeals, and U.S. Supreme Court. No specific mention is made of the U.S. Tax Court or U.S. Court of Federal Claims. The agreement, of course, prefaces its list with the usual “including, but not limited to,” but I though it interesting that there was no specific enumeration of tax fora. This is odd in view of the fact that two of the pending DOMA challenges are tax cases, though they both happen to have been brought in federal district court.)

-Tony Infanti

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