Repercussions After Law Firm Drops Anti-Gay Marriage Case
The firm was hired by House Republican leaders who disagreed with the Justice
Department's conclusion about the unconstitutionality of a section in the Defense
of Marriage Act prohibiting gay marriage.
Department's conclusion about the unconstitutionality of a section in the Defense
of Marriage Act prohibiting gay marriage.
| Source: | (AHN) | Reporter: | Kris Alingod |
| Location: | Washington, D.C., United States | Published: | May 2, 2011 05:28 pm EDT |
| Topics: | Crime, Law And Justice, Laws, Politics, Government, National Government, Social Issue, Minority Group, Gays And Lesbians | ||
Former Solicitor General
Paul Clement has left a
law firm that has decided
not to defend the federal
law banning same-sex
marriage. Conservatives
accuse gay advocates of
having intimidated the firm
into dropping the case.
Paul Clement has left a
law firm that has decided
not to defend the federal
law banning same-sex
marriage. Conservatives
accuse gay advocates of
having intimidated the firm
into dropping the case.
Clement, who served under
former President George
W. Bush, quit King &
Spalding after the firm chose
to withdraw as representative
of the congressional Bipartisan Legal Advisory Group.
former President George
W. Bush, quit King &
Spalding after the firm chose
to withdraw as representative
of the congressional Bipartisan Legal Advisory Group.
The firm was hired by House Republican leaders who disagree with the
Justice Department's conclusion about the unconstitutionality of a section
in the Defense of Marriage Act prohibiting gay marriage.
Justice Department's conclusion about the unconstitutionality of a section
in the Defense of Marriage Act prohibiting gay marriage.
Clement was to lead a team of lawyers at King & Spalding, where he
was a partner and head of the national appellate practice, in arguing for the constitutionality of DOMA. He jumped ship and joined Bancroft PLLC the
same day King & Spalding said in a terse statement that it had not
adequately vetted the offer from the House of Representatives.
was a partner and head of the national appellate practice, in arguing for the constitutionality of DOMA. He jumped ship and joined Bancroft PLLC the
same day King & Spalding said in a terse statement that it had not
adequately vetted the offer from the House of Representatives.
The transfer to Bancroft will let Clement continue representing the
Bipartisan Legal Advisory Group, which consists of five members led
by Speaker John Boehner (R-OH), in defense of DOMA.
Bipartisan Legal Advisory Group, which consists of five members led
by Speaker John Boehner (R-OH), in defense of DOMA.
Gay advocates had hailed the decision of King & Spalding.
But the firm received equally intense condemnation from conservatives,
who cited its record of defending Guantanamo prisoners and comments
from the legal community praising Clement.
But the firm received equally intense condemnation from conservatives,
who cited its record of defending Guantanamo prisoners and comments
from the legal community praising Clement.
The Human Rights Campaign, the nation's latrgest gay advocacy group,
said the firm chose "to put principle above politics... [and] to stand on
the right side of history and remain true to its core values."
said the firm chose "to put principle above politics... [and] to stand on
the right side of history and remain true to its core values."
However, the National Organization for Marriage acvused the Human
Rights Campaign of intimidating the firm.
Rights Campaign of intimidating the firm.
"Such blatant attempts by HRC and other gay marriage advocates to
marginalize and silence the views of the American people are nothing
short of despicable," the conservative group said.
marginalize and silence the views of the American people are nothing
short of despicable," the conservative group said.
Congress passed DOMA in 1996. Section 3 of the law requires
the government to recognize only marriage between a man and
a woman. Same-sex advocates have challenged this section
courts for prohibiting gay spouses from receiving Social Security benefits,
medical leaves, and federal employee and retiree pensions.
the government to recognize only marriage between a man and
a woman. Same-sex advocates have challenged this section
courts for prohibiting gay spouses from receiving Social Security benefits,
medical leaves, and federal employee and retiree pensions.
The Obama administration had been defending DOMA despite
calling the law "discriminatory" because it was duty-bound to do
so until the law is repealed.
calling the law "discriminatory" because it was duty-bound to do
so until the law is repealed.
However, Attorney General Eric Holder announced last month that
two new cases were filed in November in courts that had no
"established or binding standard for how laws concerning sexual
orientation should be treated."
two new cases were filed in November in courts that had no
"established or binding standard for how laws concerning sexual
orientation should be treated."
In previous lawsuits, government lawyers had argued that Congress
was constitutionally authorized to enact DOMA in order to preserve the
status quo until debate on same-sex marriage is resolved. They told
courts that DOMA provided nationwide uniformity in terms of federal
benefits.
was constitutionally authorized to enact DOMA in order to preserve the
status quo until debate on same-sex marriage is resolved. They told
courts that DOMA provided nationwide uniformity in terms of federal
benefits.
Holder explained in a letter to Congress, "Each of those cases evaluating
Section 3 was considered in jurisdictions in which binding circuit court
precedents hold that laws singling out people based on sexual
orientation, as DOMA does, are constitutional if there is a rational
basis for their enactment."
Section 3 was considered in jurisdictions in which binding circuit court
precedents hold that laws singling out people based on sexual
orientation, as DOMA does, are constitutional if there is a rational
basis for their enactment."
The attorney general said that rational basis, however, cannot be used
in courts with no precedents. Doing so would create a situation that
would force the government to defend the law "under heightened
scrutiny," which Holder said had never been done because it was
unconstitutional. Defending a law under such circumstances for
the first time could violate the Equal Protection Clause.
in courts with no precedents. Doing so would create a situation that
would force the government to defend the law "under heightened
scrutiny," which Holder said had never been done because it was
unconstitutional. Defending a law under such circumstances for
the first time could violate the Equal Protection Clause.
"Under heightened scrutiny, the United States cannot defend
Section 3 by advancing hypothetical rationales, independent of the
legislative record, as it has done in circuits [with] precedent," he said.
Section 3 by advancing hypothetical rationales, independent of the
legislative record, as it has done in circuits [with] precedent," he said.
"The legislative record underlying DOMA’s passage contains
discussion... that undermines any defense under heightened
scrutiny," Holder added."The record contains numerous expressions
reflecting moral disapproval of gays and lesbians and their intimate
and family relationships – precisely the kind of stereotype-based
thinking and animus the Equal Protection Clause is designed to
guard against."
discussion... that undermines any defense under heightened
scrutiny," Holder added."The record contains numerous expressions
reflecting moral disapproval of gays and lesbians and their intimate
and family relationships – precisely the kind of stereotype-based
thinking and animus the Equal Protection Clause is designed to
guard against."
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