This column by ACRU Senior Legal Analyst Ken Klukowski was published April 26, 2011 on Townhall.com.
A major law firm has caved to pressure from militant homosexual activists, and one of America’s top Supreme Court lawyers resigned from that firm rather than abandon principle. That lawyer is former U.S. Solicitor General Paul Clement, and this is a story that everyone who values the rule of law needs to understand.
In 1996, a bipartisan majority of the Republican-controlled Congress passed the Defense of Marriage Act (DOMA), signed into law by Democratic President Bill Clinton. The law specifies that for purposes of federal law, marriage is the union of one man and one woman. The law also provides that if any state breaks with 2,000 years of Western civilization by redefining marriage to include homosexual couples, no other state need recognize those unions.
Then some people started redefining marriage. In 2003, Massachusetts became the first state to do the same through an egregious instance of judicial activism. Today, a total of five states out of fifty have same-sex marriage.
Predictably, some activists challenged DOMA in federal court.
The U.S. Department of Justice (DOJ) has a duty to defend every federal law in court. The only exceptions are for laws that undermine the president’s power (and even then, DOJ sometimes defends it) or for laws where no reasonable argument can be made defending that law.
Earlier this year, Attorney General Eric Holder announced that DOJ would no longer defend DOMA because he and President Barack Obama believe that there is no rational basis for the law. This is shocking, because President Obama is speaking out of both sides of his mouth, saying that he still believes marriage is the union of one man and one woman.
Let’s make sure we have this right: Marriage is between a man and a woman, but any law saying that is so irrational that it cannot be defended in court. It seems President Obama is either schizophrenic or disingenuous.
Thankfully, the U.S. House of Representatives took up the defense of DOMA. To do so, they retained former U.S. Solicitor General Paul Clement–now a partner at King & Spalding–to defend the law in court.
In response, a militant homosexual-agenda group, the Human Rights Campaign, took the disgraceful action of organizing a nationwide boycott of King & Spalding and tried to discourage graduating law students from working there.
Everyone should have access to a lawyer. The U.S. Constitution empowers the courts to decide whether a law is unconstitutional, but also requires that a court only do so if arguments are presented on both sides. Our constitutional system of government calls for both parties putting their best arguments on the table, so that a judge has everything necessary to arrive at the correct decision.
But leftist zealots evidently don’t care about a court reaching the right decision, calling for punishing anyone who has enough faith in the American legal system to wage an honorable contest in court.
When Ted Olson decided to take a case arguing that the U.S. Constitution includes a right to same-sex marriage which mysteriously went unnoticed by anyone in the country for over 200 years, no reputable group called for boycotting his firm, Gibson Dunn & Crutcher. Nor should they. Gibson Dunn argues for many causes and clients, many of them right.
Yet in an instance of craven cowardice, King & Spalding caved to pressure and has withdrawn from the case. Rather than stand by the principle that every issue–especially one unpopular to some–deserves fair consideration in court, the firm’s chairman, Robert Hays, said that the firm was quitting.
Clement–a top Supreme Court lawyer with over fifty cases before the Court–would not cave. Rather than abandon his client, he resigned from King & Spalding. He has now joined Bancroft PLLC, a law firm and policy organization featuring well-respected conservative lawyers and analysts.
And no one can lose sight of his client’s identity: the U.S. House of Representatives. This isn’t some traitor, or depraved serial murderer of children, or terrorist regime. This is the House representing the American people, chosen by We the People.
I don’t even know if Clement is personally pro-marriage. Maybe he’s not. But he took it as his duty to represent our Congress in court. He’s a patriot for answering that call.
People should remember this episode as showing the oppressive nature of some leftists. They scream about freedom when it suits their purpose, only to deny others freedom to even be heard. On this issue, pro-marriage advocates–especially churches and ministries faithful to biblical teaching on marriage–had better take heed. You will be next.
The truth is never afraid of a good debate. At the core of the First Amendment is the idea that people must be free to speak, because the best ideas should win in the end. The Federalist Society was founded upon that premise in hosting debates at law schools, reasoning that on a level playing field, the best ideas should prevail.
Those who oppose debate do so because they fear that they cannot overcome opposition. Those who try to prevent an opponent from having a good lawyer in court fear that the law may not be on their side.
A nation under the rule of law requires top lawyers to take up both sides of legal issues going to court. Solicitor General Paul Clement shows great courage by upholding that principle. Every solicitor general and deputy solicitor general alive today–both Republican and Democrat–should express their support for the brave stand taken by Paul Clement.