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  • DOMA: Honor and the Limits of Politics

    The desire to achieve victory in any field of endeavor can become so intense that it deforms the character of the participants. That tendency has been on display in the past two weeks as a result of the intimidation offensive the Human Rights Campaign has waged against the law firm of King and Spalding and its partner, former Solicitor General Paul Clement, over his agreement to represent the House of Representatives in federal cases involving the Defense of Marriage Act (DOMA). Clement has acted with honor and consistency by putting legal ethics before any other consideration, including what can easily be inferred as his preference to remain at one of the nation’s venerable law firms.

    Clement’s decision to resign rather than participate in King and Spalding’s abandonment of its client has drawn praise from across the political and legal spectrum, including from another former Solicitor General, Ted Olson. Olson is representing the plaintiffs suing to overturn Proposition 8, the California constitutional amendment that preserved marriage in the Golden State as the union of a man and a woman. The Wall Street Journal, The New York Times and leading columnists have joined in the chorus as well.

    Painting this marriage litigation in partisan terms is wrong in the first place. News stories from publications across the political spectrum have portrayed as partisan the House’s intervention to defend DOMA after the Obama Administration announced on February 23 that it now regarded the statute as a violation of the equal protection clause of the Constitution. True, the vote of the Bipartisan Leadership Advisory Group instructing House counsel to engage in the litigation was along party lines. But support for traditional marriage and for DOMA is by no means partisan. Majorities of members of both parties supported DOMA by wide margins when it was adopted in 1996. The dozens of state DOMAs the federal version mirrors, whose fate may also be at stake, have passed Republican and Democratic—and nonpartisan, in the case of Nebraska—legislatures alike.

    Last year a Democratic-controlled Congress and a President who had repeatedly stated his support for the repeal of DOMA had an open field to schedule votes on repealing DOMA. They did not do so. The only reasonable explanation is that the Democratic House and Senate majorities in 2010 were not confident that they had enough support in their own caucus to repeal the law. Representative Barney Frank (D–MA) acknowledged as much.

    The 112th Congress includes a number of Democrats who undoubtedly faithfully represent the views of their constituents and support retaining the 1996 law. They and the people they serve—not to mention the millions of citizens (Republican, Democrat, and independent) in the 31 states who have voted to protect marriage in their state constitutions—are represented in federal court today by the House of Representatives and, therefore, by Paul Clement. The House did not choose this role, but it accepted this duty.

    Understanding this reality only underscores the offensiveness of the kind of bully politics that were on display last week in Washington, which even The Washington Post acknowledged: “[The Human Rights Campaign] sullies itself and its cause by resorting to bullying tactics.”

    The nature of marriage is a crucial, even fateful, decision for the future of civil society, but so is our ability to recognize and cherish the value of the rule of law and reasoned debate. Viewing issues as important as these through a polarized and partisan prism is a tragic error we would do well not to repeat. Marriage as the union of a man and a woman is a pre-political institution, not a partisan artifact.

    Posted in Culture [slideshow_deploy]

    7 Responses to DOMA: Honor and the Limits of Politics

    1. JeffreyRO5, Michigan says:

      There is no honor in defending an unconstitutionally discriminatory law. If Mr. Clement wishes to see DOMA remain the law of the land, he is free to pursue that end. But his is political advocacy, not legal representation. He made a deal with John Boehner without confirming his availability with his law firm. Dumb move. Now, facing embarrassment, he thinks he's Atticus Finch, defending an unpopular client? I don't think so.

    2. Chuck Anziulewicz says:

      Perhaps the law firm of King & Spalding simply came to the realization that there was no point in defending something as transparently unconstitutional as the Defense of Marriage Act.

      WHY is DOMA unconstitutional? Consider: A Straight couple legally married in Iowa is automatically entitled to 1,138 legal benefits, protections, and responsibilities according to the Government Accounting Office (GAO). Many of those benefits have to do with tax law, Social Security, inheritance rights, child custody, and so on. But because of DOMA, a Gay couple that is legally married in Iowa is still unrecognized by the federal government for those benefits.

      Consider, also, the "Full Faith & Credit" clause of the Constitution. Because of this, any Straight couple can fly off to Las Vegas for drunken weekend, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, and at all levels of government. But thanks to DOMA, a Gay couple that is legally married in Iowa becomes UN-married if they relocate south to Missouri.

      The ONLY real difference between a married Gay couple and a married Straight couple is the gender of the two people who have made the commitment. It has nothing to do with procreation, since couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. So there is really no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits, protections, and responsibilities that married Straight couples have always taken for granted. This cannot be accomplished in a piecemeal, state-by-state fashion; it is the FEDERAL government which, through its own actions, has made this a federal issue.

    3. kevin, foresthill says:


      I agree that gays should have more rights to marriage as you stated, but that is not what this is about. This is about upholding the constitution as law and following that law. We need politicians and voters to approve gay marriage, and if it can not pass then it isn't the time for it to become law (thats the american way – we all have a say in what is law and what isn't law) What we do not need is our federal government decieding what laws it wants to follow and what laws it doesn't want to follow.

    4. Jose, Pensacola FL says:

      What escapes the rationale and reasoning of the self indulging "gay couples" is the inescapable reality that marriage is the fundamental cornerstone of our society and the bedrock of our republic. It is the essential foundation needed to build a stable, honorable and dependable nation. I am not saying that men and women with homosexual preferences are any less a citizen that heterosexual. Nor am I affirming that heterosexuals are necessarily honorable and dependable.

      But what is unquestionably true, evident in the overwhelming historical record, is that the American fiber was woven from strands of heterosexual men and women of a great number of different backgrounds, who based their ideals, behavior and ethics on moral absolutes handed down by the same Creator that endowed us with inalienable rights. That Creator established the institution of marriage as the smallest cell of the overall human existence on this Earth. And He did that by bringing man and a woman in an essentially unique union that would have the ability to support the strains and stresses of the remainder of their days, and to pass on to other generations of equally committed individuals born of the same fabric. It is not a legal, fiduciary, taxation or contractual union of convenience. It is an absolute standard that transcends other transitory motivations and remains from generation to generation where time cannot fade. Traditional marriage MUST be preserved. Get your civil unions, which grants homosexuals most of the benefits and advantages you seek, but leave this sacred institution to those who understand its meaning.

    5. Chuck Anziulewicz says:

      DEAR JOSE:

      You write, "Get your civil unions, which grants homosexuals most of the benefits and advantages you seek, but leave this sacred institution to those who understand its meaning."

      To be honest, I have no problem with this. I'm not interested in dragging out this battle over terminology. Let's say, for the sake of argument, that the Supreme Court ruled that there was no Constitutional justification for denying Gay couples the same legal benefits and responsibilities that Straight couples have always taken for granted, but that those benefits and responsibilities could be granted to Gay couples under a different term … such as "civil unions." The rights under tax law, Social Security, etc. would be EXACTLY the same for Gay and Straight couples; only the terminology would be different. Opposite-sex couples would be allowed the option to "marry," and same-sex couples would be allowed the option to enter into "civil unions." Social conservatives could keep the term “marriage” for themselves, and Gay couples would be granted equal protection as specified by the 14th Amendment and the "Full Faith & Credit" clause.

      Personally, I wouldn't have a problem with that. And YET, in every single state where "civil unions" have been proposed as a legal alternative for Gay couples, they have been just as viciously opposed by social conservatives.

      WHY IS THAT? Perhaps, contrary to what you suggest, it is not the word "marriage" that people are concerned about, but any and all legal benefits for Gay couples.

    6. Robert Knight says:

      This fine piece clearly depicts what is at stake regarding the rule of law, and also notes that marriage is pre-political. Marriage, which was created by God, can be falsely re-defined, but its essential nature cannot be altered any more than gravity can. We would love to insist that politicians keep their hands off marriage, but it's gone beyond that, and the GOP House is right to ignore calls for unilateral moral disarmament.

    7. Wes in cincy says:

      God has already cast his vote when he created man and woman.

      But as this nation slides further away from God, then man will

      always try to redefine everything. But just because man changes

      something, that doesn't mean that God changes with them.

      And in the end that's all that counts. God will have the last say.

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