The legislative battle to repeal DOMA takes center stage this week at the Senate hearing, scheduled for tomorrow at 10 AM ET. Details here and there will be a livestream.
But, there’s an interesting story underway in Edie Windsor’s case against DOMA, which the Bipartisan Legal Advisory Group (BLAG) is defending — which really means John Boehner and his lawyer, Paul Clement, are defending. The Boehner/Clement team won’t answer basic questions in discovery. Just won’t answer them. Edie’s lawyer, Roberta Kaplan, has asked the Judge to compel BLAG to answer basic questions. Kaplan’s letter can be found here. Edie and her lawyers aren’t messing around. Here’s an excerpt:
Yet BLAG has refused to provide any meaningful response to 23 of plaintiff s 28 requests for admission and has provided no response whatsoever to any of plaintiff s interrogatories. In attempting to justify its failure to respond, BLAG has not objected on the ground that plaintiffs requests seek information that is not relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Nor has BLAG identified any substantial burden in responding to plaintiffs requests. Rather, BLAG appears to have simply made the tactical decision that it would prefer not to respond substantively to plaintiffs requests for written discovery. This, however, the Federal Rules of Civil Procedure do not permit. See, e.g., Fed. R. Civ. P. 36(a)(4); 33(b)(4).
Although we have tried to resolve these issues without the assistance of the Court, BLAG has made it clear that it is not willing to provide further responses to Ms. Windsor’s discovery requests.
Got that? Apparently, Boehner and Clement are trying to conduct the defense of DOMA on their own terms, as if the rules don’t apply. And, this tactic, of course, wracks up more taxpayer-funded billable hours for Clement, too.
Through her lawyers, Edie Windsor “respectfully requests an order compelling BLAG to respond substantively to plaintiffs RFAs and interrogatories concerning the following five matters that plaintiff believes are clearly relevant to the constitutional issues presented in this case.” Those five issues are:
1. Whether the gender of Thea Spyer’s spouse was dispositive of whether her estate qualified for the estate tax marital deduction.
2. Whether lesbians and gay men have been subjected to unequal treatment and discrimination.
3. Whether sexual orientation is unrelated to a person’s ability to perform in or contribute to society.
4. Whether lesbians and gay men are as capable of caring for their children as heterosexual parents.
5. The justifications for Section 3 of DOMA.
So, Boehner is defending DOMA, but won’t answer these fundamental questions about that law. These five matters get to the core of the discrimination that is DOMA. I really hope the Judge forces Boehner and Clement to answer those questions. It’s hard to envision how DOMA can be defended if Boehner and his legal team can’t answer them. And, it’s hard to see how they can actually participate in this case if they won’t follow the rules.