Paul Clement, DOMA and Legal Integrity

By Carl M. Cannon - May 2, 2011

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This reasoning lacks even common sense: It's noble to defend a Gitmo terrorist who, if released, would advocate putting homosexuals to death? But it's despicable to defend the proposition that the word "marriage" is reserved for heterosexuals? You wonder sometimes who is writing these talking points.

"I always think it is an outrage when people attack the lawyers for whom they represent," said Carter Phillips, the managing partner of a top Washington law firm. "It's our responsibility to make sure that every side in a litigated matter is adequately represented. If that means personal sacrifice of one sort or another, that's the price you pay."

It's really that simple. But it doesn't mean DOMA is constitutional.

The Constitutional Argument

Whether it's good social policy or not, Section II of the Defense of Marriage Act -- the provision releasing states from their obligation to accept another state's definition of marriage -- is not the problem. Section III, in which Congress flatly defined the word marriage to outlaw both plural marriages and same-sex marriages -- that's where the dispute lies. Those trying to overturn it say it's simply beyond the scope of congressional authority, and a clear violation of the 14th Amendment's "equal protection clause."

To a layperson, it seems axiomatic that telling a class of Americans they can't marry is the kind of prima facie discrimination the 14th Amendment was passed to prohibit. Actually, the Reconstruction-era amendment, enacted as a way to nullify the Dred Scott decision and grant blacks full citizenship, is more complicated than that. In case law over the years, the federal courts have expanded 14th Amendment protections to other racial minorities and to women. So should gays now be included? If so, there are legal tests that must be met.

The high court has developed a test known by lawyers as "heightened scrutiny." Has the affected group been the victim of systematic discrimination in the past? Is the group singular in some way that justifies being treated differently? Is their condition immutable? (You can't alter your race, for instance.) Finally, is the group powerless?

If the justices don't believe that gay and lesbian couples fit into this paradigm, they revert to another, lesser, legal test known as "rational basis review." Under this delineation, in order to overturn DOMA, the Supreme Court would have to rule not just that the statute is misguided, but irrational.

These are the questions both sides know the case will hinge on, which explains a lot, ranging from Eric Holder's seemingly esoteric digression into the root causes of homosexuality, to HRC's jihad against King & Spalding's top appellate lawyer. You see, same-sex marriage advocates don't want a seasoned constitutional scholar standing before the Supreme Court skillfully dissecting the case law and bantering knowledgeably with justices he knows personally and who respect him. They want some right-wing zealot standing before the court quoting the Bible. Due to Clement's stubbornly principled actions that's exactly what they won't get.

Those who follow the Supreme Court even casually know that a 5-4 decision in DOMA is likely, with the four conservative justices and four liberal justices cancelling out each other's votes and leaving Anthony M. Kennedy to dispense his unpredictable brand of jurisprudence.

If the outcome hinges on Kennedy, same-sex marriage advocates can comfort themselves knowing that he authored possibly the most pro-gay opinion in the court's history. On the other hand, Kennedy has been known to factor real-world -- some would say extraneous and speculative -- evidence into his rulings, ranging from public opinion in Europe about capital punishment in the U.S. to his ruminating that having an abortion might induce "severe depression and loss of esteem."

This propensity to look through a wider lens might prove significant. Specifically, I wonder whether the ease with which HRC caused King & Spalding to capitulate might cause Tony Kennedy to reach an obvious, real-world conclusion: namely, that gays and lesbians are far from powerless, and are doing just fine without any "heightened" protections. If it comes down to that, the campaign against Paul Clement would have backfired -- and produced its own rough justice.

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Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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