Premature Celebrations: Fight Against DOMA


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I’ve had this feeling since President Obama took office that progressives have let their eyes wander from the ball.  I hear victory roars far more often than I see actual victories.
For example, in February of this year, the Obama Administration, through Attorney General Eric Holder, announced that it would cease defending the Defense of Marriage Act (“DOMA”) in court.  Well…kinda.
What AG Holder said was that, after two years of defending the statute vigorously, the Administration was not going to defend DOMA… rather, Section 3 of DOMA… rather, the constitutionality of Section 3 of DOMA … in two cases pending in the Second Circuit… because the Second Circuit had not yet decided the appropriate level of scrutiny for laws that classify based on sexual orientation… and “in such cases,” the Administration takes the position that heightened scrutiny should be applied … and “in such cases,” the Administration does not believe DOMA is constitutional.
This was a bit like telling your boyfriend, after years of infidelity, that after careful consideration you will stop cheating on him … at the gym … on Thursdays … if it’s raining.
As for cases not pending in the Second Circuit, AG Holder said that “upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.”
“So, sweetheart, in all other circumstances, I promise to tell the trick I am with that I really wish that this were Thursday at the gym in a rain storm, so that we would not have to have sex.”
Blink … blink blink … blink
The media—bless them—along with most progressive groups ignored the troubling equivocation and widely reported this as a brave step forward for the Obama Administration.
Well, “bravely,” AG Holder, in the same announcement, also invited Congress to intervene in these cases so they could continue to defend DOMA exactly as it had been before.  House Republicans happily accepted AG Holder’s invitation, and true to his word, AG Holder allowed Boehner and his frat pals to intervene in these cases without even a perfunctory opposition.  Nothing actually changed.
Hehe … I said Boehner.
Anyways, the Republicans chose as their advocate the seasoned appellate litigator and former U.S. Solicitor General Paul Clement, who was then a senior partner at the renowned law firm, King & Spalding.
But, only days after the engagement letter was signed, King & Spalding announced that it had decided to withdraw from representation.  The media attributed the withdrawal as coming after and therefore as a result of (it sounds better in Latin) pressure from gay rights groups.
Uhhhhhh … doubtful.
Now, I have no special knowledge, but I think that probably King & Spalding expected criticism from gay rights groups when they originally agreed to let Clement take the case.  What I imagine actually happened was that some important client—The Coca-Cola Company, for example—gave King & Spalding’s Chairman, Robert D. Hays, a quick ring.  The conversation probably went something like this.
MK: Hi, Bob, this is Muhtar Kent over at Coke, how’s it going?
RH: I’m doing great, Muhtar.  You?
MK: Well, not so good.  You know that $2 million in legal fees you bill us for every month.
RH: Sure, Muhtar.  Thank you for your business.
MK: Uh-huh.  And do you know how much of our company’s revenue is generated from gay men?  Do you?  Diet Coke is like oxygen to these people, Bob.
RH: Uh …
MK: And do you know what kind of hit we’ll take when everyone finds out our lawyers are crawling into bed with John Boehner to uphold DOMA?!
RH: Hehe … you said Boehner.
MK: Shut up and fix this!!!
And, voila, King & Spalding dumps the GOP on the sidewalk.
Paul Clement quit the firm immediately.  His resignation letter was spectacular:
I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.  Defending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where the passions run high. . . . Much has been said about being on the wrong side of history. . . . When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.
Paul Clement will be hired by whatever firm he wants to go to (Bancroft PLLC is his immediate destination), and because of that, he might have the flexibility of having principles that the business of King & Spalding cannot have (i.e., for fear of losing huge legacy clients).  But his point is a valid one.
Nevertheless, Clement’s resignation and King & Spalding’s firing of the Republicans are more non-victories that progressives seem thrilled about.
Friends, the constitutionality of DOMA is going to be defended, and that is a good thing.  This is a law that was passed by Congress and signed by the President.  DOMA is an insidious piece of hate-mongering, to be sure, but even child murderers get a lawyer.  The judiciary is America’s thoughtful oligarchy—the brains to Congress’s heart and the President’s brawn.  If we have conviction in our argument, and we make a compelling case, then the system will work out as it should.  (For the most part.)
I am not afraid of anything Clement and his team will come up with in defense of DOMA (even just Section 3 of DOMA).  I’ve heard or read every colorable argument in support of this law, and they are all overcome-able by that resilient (if sometimes inconvenient) American conviction that even unpopular groups get to have rights too.
If we remember that, and practice what we preach, then we’ll soon have a real victory to celebrate.


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