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Paul Clement, DOMA and Legal Integrity

Paul Clement, DOMA and Legal Integrity

By Carl M. Cannon - May 2, 2011

In adherence to the old newsroom adage that opinions are free and facts precious, in three-and-a-half decades as a journalist I have declared my own view on a public policy issue precisely once. Having covered, before age 30, four cases of men charged with capital murder who were innocent, I concluded that the death penalty was wrong, and explained my reasoning a decade ago in a conservative magazine under the theory that this was the constituency that most needed convincing.

Today, I'm going to bend my rule again and state my belief that there should be no legal barriers to gay marriage in this country. I don't consider my rationale particularly enlightened or original, and I think that public opinion is moving inexorably in that direction, so I'll leave it at that.

But does that mean that the other side shouldn't be allowed to have its say in court? Does it mean that a federal law passed only 15 years ago, the Defense of Marriage Act, that codifies the status quo is not worthy of legal representation? Or that those who argue for maintaining the traditional definition of marriage should be marginalized, silenced, demonized?

The Human Rights Campaign, a prominent 30-year-old gay rights organization, answers those questions in the affirmative. So, too, do a surprising number of Democratic Party office-holders (most of whom were unwilling to risk their own re-elections by standing up for gay marriage when it counted), along with numerous "progressive" pundits. As for King & Spalding, the huge corporate law firm that ignominiously dropped the gay marriage case last week -- and sacrificed its most accomplished partner in the process -- its message to clients is simple: You can have your day in court and we will defend you, but only if nobody criticizes us for it.

It's getting difficult to figure out who the real liberals are these days.

A Patriot's Act

In 1770, John Adams, a future founder, framer, and signer of the Declaration of Independence, agreed to defend eight British soldiers and one officer indicted for murder in the Boston Massacre. Already known as a Massachusetts patriot, Adams accepted the case and argued it before a jury with relish. "Facts are stubborn things," Adams said in his impassioned summation. "And whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the . . . evidence."

The soldiers benefited from receiving competent counsel: seven of the redcoats were acquitted outright; two others were adjudged guilty of reduced charges of manslaughter. Although in his diary Adams termed his actions the most "gallant" and "generous" of his life, he also feared it would end his political career. Instead, the trial showed the world what Americans could do with this instrument of self-government they were proposing. In the end, the trial enhanced Adams' legacy. He went on to become the nation's second president, and to this day, the American Civil Liberties Union touts the actions of the "young Boston attorney [who] courageously took the case to ensure that justice was served."

Throughout our history, lawyers have stepped into the breach to litigate such cases. Many of their names are known to the nation: Alexander Hamilton, Louis Brandeis, Clarence Darrow, Thurgood Marshall. Others, such as Wayne M. Collins, Bruce J. Terris and Thomas C. Connolly, are known mainly to other attorneys. In other words, John Adamses walk among us today, as they always have.

These attorneys don't always win. Sometimes their cases never become popular. They can be on the wrong side of the facts, and the wrong side of history. Regardless, they are fulfilling a basic promise of America, which holds that every person and every cause gets their day in court. As Thomas Jefferson wrote in his first inaugural address, trial by an impartial jury is one of the principles that "form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation."

DOMA and Guantanamo

Earlier this year, Paul D. Clement, one of our modern John Adamses, signed on to argue the constitutionality of the Defense of Marriage Act. Clement is conservative, but hardly strident. For starters, in his resignation letter to King & Spalding, which he made public, Clement didn't mount any defense of the merits of DOMA. In fact, he went out of his way to say that his personal views aren't relevant, which led some observers to infer that privately he's not too troubled by same-sex marriage.

As solicitor general during George W. Bush's presidency, Clement was a leavening influence in an administration that often operated in a wartime mindset, if not a bunker mentality. It was Paul Clement who warned the White House Counsel's Office of the adverse implications of denying counsel to Guantanamo detainees -- even while defending the administration's policies before the Supreme Court. Clement also warned White House officials that their plans to dilute EPA rules regarding ozone protection contradicted the agency's previous submissions to the Supreme Court. These were not isolated examples.

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

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