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Once again, who does DOMA protect?

DOMA trials

By Adam Bink

Not to beat a dead horse on this issue, but two more points on the DOMA representation issue. The NYTimes gets in the business of opining for a Great Historic Debate as the LATimes did… THIS time lamenting the decision of King & Spaulding to drop the case. Excerpt:

King & Spalding had no ethical or moral obligation to take the case, but in having done so, it was obliged to stay with its clients, to resist political pressure from the left that it feared would hurt its business. Paul Clement, a former solicitor general who quit as partner in King & Spalding over the decision, said, “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

Justice is best served when everyone whose case is being decided by a court is represented by able counsel.

First, lawyers take and drop cases. It’s a fact of life. Second, there is no “everyone” in this case. When lawyers represent unpopular clients because of the merit of the rights being protected — the case at the SCOTUS a few months ago involving Westboro Church and the right to free speech at funerals comes to mind — there is some argument to be made. In this case, DOMA doesn’t protect anyone. It doesn’t ensure fundamental constitutional rights to any particular citizen that would be deplorable if they were taken away. In fact, it only ensures rights are excluded from one group. I can’t say this enough, but there is no “responsibility” as the LATimes put it, to take the case. There is only a choice and a bad one made at that.

NCLR’s Kate Kendell, writing in the Bay Area Reporter, picks up on that point:

Clement and his defenders argue that unpopular causes are entitled to representation. For example, the American Civil Liberties Union represented the Ku Klux Klan in the late 1970s when the KKK was denied a right to march in Skokie, Illinois. But any comparison between that case and Clement’s defense of DOMA unravels immediately. In the Skokie case, the ACLU was defending the First Amendment. They rightly took the position that even a group as repellent as the KKK had a right to free speech. In this situation, there is no similar underlying principle or right at stake. No one would be bothered, for example, if an outdated Jim Crow law that had never been repealed were challenged in court and no lawyer was willing to defend that law. In order to justify the defense of a law, it must be possible to identify some principle that deserves to be vindicated, and here, there simply is none.

DOMA was passed in order to express moral disapproval of LGBT people. It does not embody conflicting principles that need a full-throated defense on both sides to produce a just and fair result. The sole purpose of DOMA is to discriminate against same-sex couples. It perpetuates harm against an underrepresented community and singles out certain families for unequal treatment from their government. No self-respecting lawyer or law firm should be willing to tarnish their reputation by defending such an appalling law. King and Spalding’s decision to withdraw was a turning point in this struggle because it symbolized a shift in power between those who understand that simple truth and those who do not.


  • 1. Ed Cortes  |  April 28, 2011 at 11:29 pm


  • 2. Ronnie  |  April 28, 2011 at 11:33 pm


  • 3. Ronnie  |  April 28, 2011 at 11:33 pm

    uggg…check the box…. :"> …..Ronnie

  • 4. Gregory in Salt Lake  |  April 29, 2011 at 12:15 am

    OT – Isn't today Mark and Roberts big day in Iowa? I got one email from Mark as they passed Utah on their way…anyone have any updates?

  • 5. AnonyGrl  |  April 29, 2011 at 12:18 am

    Yes… he just posted in the P8TT and prizes thread… they will be getting married shortly!

  • 6. Gregory in Salt Lake  |  April 29, 2011 at 12:40 am


  • 7. Ann S.  |  April 29, 2011 at 1:32 am

    That's right — same day as William and Kate. Hooray for Mark and Roberts big day!!

  • 8. JonT  |  April 29, 2011 at 12:55 am

  • 9. Kathleen  |  April 29, 2011 at 12:53 am

  • 10. Straight for Equalit  |  April 29, 2011 at 1:33 am

  • 11. Menergy  |  April 28, 2011 at 11:42 pm

    I REALLY like Kate Kendall's succinct and on-target statements!!!! This should get wider and wider distribution for the truth!

  • 12. DazedWheels  |  April 29, 2011 at 12:23 am

    Standing ovation for Adam and for Kate Kendall!!

  • 13. Sagesse  |  April 29, 2011 at 12:24 am


  • 14. Alan E  |  April 29, 2011 at 12:44 am

    Duh. It protects the sanctity of marriage by making sure gay men marry lesbian women just for the sake of protections and rights given by the government.

  • 15. Don in Texas  |  April 29, 2011 at 6:31 am

    Not to put too fine a point on it, but rights are not "given by the government." Our rights pre-date the establishment of any government; they are "endowed by [our] creator." If the government could "give" rights, then it just as easily could take them away. But our rights under the Constitution are enduring for all time.

  • 16. Felyx  |  April 29, 2011 at 7:11 am

    Putting an even finer point on this… I wouldn't go trying to declare the 'creator' bit unless you are going to put the appropriate interpretation on it… cuz I just knows the opposition ain't gunna buy it! 😛

  • 17. Rhie  |  April 29, 2011 at 11:10 am

    Well, probably not since "endowed by the creator with these inalienable rights – life, liberty, and the pursuit of happiness" is a direct quote from the Constitution. It's painfully clear that none of the opposition have a clue about what it actually says. 🙂

  • 18. Bob  |  April 29, 2011 at 1:41 pm

    ah that is the argument,,, life, liberty, and the pursuit of happiness, are inalienable rights, that one and ALL are born with,,,, They do not come from a direct quote from the Constitution,,,,, saying they do makes the constituion your God……

    As far a wether they come from the Creator, that is up to each individual to come to terms with, without undo influence,,, this term takes on different meanings depending on one's life experience and how they relate to the world in which they live..

    we do not have rights because the consitution or any other written word says we do,,,, those writings simply confirm and acknowledge the rights we already have,,, we reflect them back to ourselves and by consensus agree to honor and uphold those rights for the good of all humanity…..

    people fought for and achieved rights such as free speech before it was written into the constitution,,,, and likewise the Bible,,,, neither of those writings gave us our rights,,, they only confirm them…..

    clinging to the words in old texts limiits us,, both of those wrtings were meant for ongoing interpretation for the prupose of ensuring everyone could achieve life liberty and the pursuit of happiness,,,,,

  • 19. Felyx  |  April 29, 2011 at 1:49 pm

    Irony here…

    Republican House Majority passed a rule stating each new piece of legislation submitted should have a reference from the Constitution.

    So far the rule has been all but completely ignored. (Where in the Constitution ANYWHERE does it give authority to impede abortion?…. right.) The few references actually submitted are kinda funny in a geeky way.

    So, in reference to your comment above, yes, the reading of the Constitution at the beginning of session was clearly for show only!

  • 20. Rhie  |  April 29, 2011 at 6:22 pm

    Um. Bob you aren't making any sense here. I think you are saying that I said the Constitution is god? To be honest I didn't get anything else out of your rant so I will address that.

    Buckle up for a crash course in the Declaration and Constitution, and the basis of law in the US. I suggest you find some books and articles about this. It will help you frame the discussion here about US rights in the proper historical and legal context.

    I was directly quoting the Declaration of Independence (not the Constitution oops). This is held is just as much if not more esteem by Americans. The Constitution is a direct result of the beliefs espoused in the Declaration.

    I was saying that the Right Wing clearly is willfully ignorant of the Founding Documents of this country in response to Felyx. The full quote is below:

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

    The Founders wrote it down precisely because they believed that men have these rights no matter what any government says. They were fighting against a government they believed to be against these rights that are just given by nature – or, as they put it – a Creator. They didn't mean what the Religious Right now means by that, by the way.

    They wanted that in writing so no one could deny it – hence the Constitution. It's why one of the amendments states that any right not enumerated here still belongs to people. I believe it was Madison who put that in. He didn't want some idiot years later claiming that they only rights that exist for us are the 10 there plus any other amendments. This was because he believed the above: that human rights are a natural given and not something for a government to give or take.

    So it's not worship of the Constitution or anything like that to quote it in a conversation about rights and law in the US. It's simply logical as that's the basis for this whole fight.

    The Founders were amazingly ahead of their time. The Universal Declaration of Human rights wasn't written til 1948 and there are still countries that have not signed it.

  • 21. Felyx  |  April 29, 2011 at 8:41 pm

    Well writ, Rhie!

  • 22. Sheryl Carver  |  April 30, 2011 at 12:10 am

    I second that, Rhie! Thanks.

    (Wish I could write as well.)

  • 23. Kate  |  April 30, 2011 at 12:14 am

    Rhie, you ROCK!

  • 24. Rhie  |  April 30, 2011 at 4:54 am

    Aw! Thanks, guys! 🙂

  • 25. Bob  |  April 30, 2011 at 5:32 am

    yes very well written Rhie,,,,,

    but when the founders wrote it down,, they believed at the time that those rights did not extend to blacks, or natives,,,

    hence the right of the people to alter or abolish it…. I'm just saying that's the important point,,,, it's a living growing document,,,,,

    and because LGBT rights where not enumerated in the original draft, it's time to alter it to include us as having those rights…..

  • 26. Rhie  |  April 30, 2011 at 6:38 am

    Actually, it's pretty clear from these writings and others that they hoped that these rights WOULD apply to all. That's what is meant when people say America was founded on an idea, an experiment. Check out the Enlightenment writings at the time. That's why it says it all in the documents, not landowners or white people or men.

    The Constitution is living in that we are always working toward a more perfect union. We are aiming to become more free and make the idea of freedom for all really, truly happening.

    That's why fights like the prop8 fight and DOMA and DADT and immigration and ENDA are so important. That's where the idea of America fails or triumphs.

    LGBT rights are enumerated in the Constitution. Or rather, the rights of the 14th Amendment, 1st Amendment, and all the others apply just as much to LGBT as they do to straight people. That's the point of this fight. Bigots are trying to limit the Constitution in a way that was never intended.

  • 27. Bob  |  April 30, 2011 at 8:15 am

    wow,,, really well said Rhie,,,, I have been making attempts at reading up on these things,,,,, complicated at times,,, but you really summed it up in pretty plain language

    you spelled out the point of this fight and I do agree it's the ultimate test, Where the idea of America fails or triumphs,,,,

    bottom line is to prevent people from limiting the consitution in ways that were never intended,,,

    LIKE now we just got to get that plain language message out there and heard……

  • 28. Rhie  |  April 30, 2011 at 8:32 am

    Thank you for asking the questions! I do believe the ideas of freedom and equality this country was founded are on are sound. It's why get so upset with the opposition. They take those ideas and twist them to mean the exact opposite of freedom and equality to serve their own bigoted ends.

  • 29. fiona64  |  April 30, 2011 at 9:09 am

    Nope, it's from the Declaration of Independence.

    Which is not the basis of law — it's a kiss-off to George III.


  • 30. Rhie  |  April 30, 2011 at 9:25 am

    Yea, I figured out the proper citation right after I said it. And someone else pointed it out too. Thanks though.

    The point still stands. The Constitution follows directly from the Declaration, the Federalist Papers and other writings of the time. They are all based on the Enlightenment ideals of the day, the most radical of which is that all men are equal in the sight of God. The second most radical is that God can be defined however someone wants to define him or her. That would be the First Amendment.

  • 31. Fr. Bill  |  April 29, 2011 at 12:48 pm

    @ Don. That's one big reason why civil unions are NOT equal. They are given by the legislature and what the legislature can give, it can take away.

  • 32. Charlie Galvin  |  April 30, 2011 at 4:31 am

    The bit about "endowed by their Creator" with “inalienable rights” is from the Declaration of Independence, not the Constitution.

  • 33. Rhie  |  April 30, 2011 at 4:32 am

    Yea I figured that out after. Oops. The point still stands though since the Constitution flows from the Declaration.

    Thanks though 🙂

  • 34. Randy  |  April 29, 2011 at 1:18 am

    Hi everyone, I don’t comment often but do like to follow the community. I just got this email from my Congressman (Bob Brady-D-PA 1st district, Philadelphia) and while not surprising it was nice to see this mentioned in an email blast to all his constituents. A few years ago hardly any public official would even think of talking about this so easily but now it was just one of his normal messages about what he is working for…

    Let me know if the link doesn’t work, not tried posting links before.

  • 35. Ann S.  |  April 29, 2011 at 1:33 am

    Thanks for posting that, Randy!

  • 36. DaveP  |  April 29, 2011 at 2:14 am

    Thanks, Randy. I just wrote to Congressman Brady via hsi web site:

    Dear Congressman Brady,

    Regarding your email about you opposing the GOP's plans to defend DOMA, I just wanted to say that it is so encouraging to hear an elected official talk about this shameful and discriminatory law in such clear, unambiguous terms. You are clearly a real leader. Thank you very much for all you are doing!


    Dave Peck

  • 37. Randy  |  April 29, 2011 at 2:40 am

    Thanks, I also sent this to him:
    I wanted to take the time to thank you for your recent Brady Brief email. I shared it with several friends and online forums. In a time when my community is used by the right to create a wedge issue, sometimes using thinly veiled insults, or just being out right bigots, it is refreshing and encouraging to see my Congressman being clear and open about something that is simply wrong. I want you to know that because of this action and your continued involvement in helping to make my citizenship as equal as everyone else’s I will make sure that I and anyone I can get to the polls will vote for you and donate when they can. This simple action has helped to give me faith in our government again, and faith in the political system that seems to be crumbling at times. Thank you, and if ever I am able to have a wedding (been waiting 10+ years now with my partner) in our state you will be invited to enjoy some cake with my family and friends.

    I am trying to get as many people in my district to send something as well, just because he has said he will continue to work on this I don’t want to forget about him. I hope for a day when something like this is not so moving, when it will just be an "Oh yeah" kind of email. Until then we have to show all our elected represent ivies that we support them in their fight for us.

  • 38. Sagesse  |  April 29, 2011 at 2:08 am

    Fascinating history lesson in the NYT.

    How the Law Accepted Gays

  • 39. elliom  |  April 29, 2011 at 2:19 am

    Darn…i was just about to share that, and you beat me too it! :p I also found the article interesting…nice succinct lesson on how far things have come in the last 50 yrs.

  • 40. Felyx  |  April 29, 2011 at 5:10 am

    Seemed a touch biased, I would think. Almost sounds like the author is making a case of a consistent history of 'gays bullying' to create change.

    "The decision cannot be dismissed simply as a matter of political correctness or bullying by gays. "

    He ends, however, with a similar request that all of us here have made:

    "Respectable constitutional arguments for the Defense of Marriage Act will surely be made — but grounded in ideas, one hopes, not contempt. "

    Although many of us are really requesting RELEVANT ideas in stead of just any old ideas off the street… or pulled out of NOM's ….!

    Still, it was an interesting read. (Minus the covert bias.)

  • 41. AnonyGrl  |  April 29, 2011 at 5:36 am

    I caught the same bias, but chose to read the positive information as more important…

    The author still thinks a DOMA defense that is not based in prejudice is possible, and there we disagree, but I like that he expresses the concern that it not be one of contempt.

  • 42. Straight Ally #3008  |  April 29, 2011 at 11:24 am

    Take away contempt, and what have they got?

  • 43. Don in Texas  |  April 29, 2011 at 2:14 am

    In the interest of correcting the record, there is an error in Kate Kendell's recent article in the Bay Area Reporter.

    Ms. Kendell refers to the ACLU's defense of the First Amendment in the Skokie, Illinois, case, but she errs in saying that the ACLU defended the KKK. In fact, the plaintiff in the case was the National Socialist [Nazi] Party:


    It's a fascinating read.

  • 44. Rhie  |  April 29, 2011 at 4:49 am


  • 45. gaydadtobe  |  April 29, 2011 at 5:59 am

    You want a perfect reason why the DOMA trial should continue? This is why:

    <a>Watch: Katie Miller Talks to Rachel Maddow About West Point Rejection

    She was rejected by West Point for…being an out lesbian. Surprise!

  • 46. Ann S.  |  April 29, 2011 at 7:07 am

    Hmm, there's no link there.

  • 47. Alan E.  |  April 29, 2011 at 7:09 am

  • 48. Greg  |  April 29, 2011 at 7:05 am

    Paul Clement accept the DOMA case purely for the $500,000. In other words, he sought to profit from defending discrimination. There are no great principles at stake here – Clement would drop the case in an instant if the funds were cut off.

    And if King and Spalding wish to make money by defending discrimination, then it only makes sense to raise the issue with their current clients and potential recruits. After all, if K & S were willing to take the case for money, it's only logical that they should drop it when it becomes clear the case would end up costing them more than the $500,000.

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