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Gov't Won't Pay Fees, Despite Defeat in DOMA Challenge

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By William Peacock, Esq. on September 25, 2014 1:17 PM

The McLaughlin Group won. No, not the TV show with political pundits -- this McLaughlin Group, comprised of active-duty members of the United States armed forces and National Guard, veterans, and their same-sex spouses, challenged the Defense of Marriage Act. They were one of many groups challenging the law, and when the U.S. Supreme Court struck down the heterosexist definition of marriage present in the Defense of Marriage Act in United States v. Windsor, they won.

There was never an argument against their case. The Obama administration took a no-defense, full-enforcement approach to the law, despite the president's own feelings that the law was unconstitutional.

A defense and enforcement without merit? To the McLaughlin Group, this sounded like the circumstances covered by the Equal Access to Justice Act (EAJA), which allows attorneys fees when the government takes an unjustifiable position on a civil rights case.

The Case for Fees

As hinted above, the McLaughlin Group was seeking fees because the U.S. Government, despite its knowledge that DOMA was unconstitutional, continued to enforce the law, necessitating the suit to kill DOMA's "one man, one woman" definition of marriage.

Under the EAJA, "a court shall award to a prevailing party other than the United States fees and other expenses . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." And, from the administration's own admission, DOMA was unconstitutional, yet enforced, until the Windsor decision was handed down.

Victory in Defeat

While the EAJA provides fees for cases where the United States takes an unjustifiable position, not all legally losing positions are unjustifiable.

As the First Circuit, district court, and even the Supreme Court (in the Windsor case) all noted, the Obama administration was going for a gracious defeat here. By enforcing the law, but declining to defend it, they preserved justiciability, allowing the Court to address the matter in Windsor.

And, had the executive branch declined to enforce the law, it would be trampling on the other two branches' powers: the legislature's judgment in passing the law and the courts' duty to say what the law is (Marbury).

In short: Though the Executive thought that there was no legitimate defense for the discriminatory law and refused to defend it, that doesn't mean the position of enforcing it (necessitating the McLaughlin Group's lawsuit) was unjustifiable -- things other than legal merits, such as preserving justiciability and respecting separation of powers can justify the stance, even without the law.

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