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Blowback: Nothing defensible about DOMA

April 22, 2011 |  7:21 pm

Maya Rupert responds to our editorial, "Defense of Marriage Act: Attack the law, not the lawyer." She is the federal policy director for the National Center for Lesbian Rights. Click here for more information on Blowback, our forum for readers to respond, at length, to Times articles.

DOMA In its April 21 editorial, The Times argues in favor of Paul Clement's decision to defend Section 3 of the  Defense of Marriage Act, known as DOMA, which discriminates against legally married same-sex couples by prohibiting the federal government from recognizing their marriages for any purpose. In the editorial, The Times  takes the curious step of extending the familiar maxim that "every person deserves a lawyer" to the more expansive "every position deserves a lawyer." The first is a fundamental right upon which we base our criminal justice system. The other is a fiction that mistakenly seeks to insulate a shortsighted law firm from criticism for its decision to defend a discriminatory law. 

As the editorial correctly points out, there is an honorable tradition of lawyers defending unpopular and controversial clients. Civil liberties organizations, for example, have repeatedly, and admirably, defended plaintiffs whose views they abhor (such as members of the Ku Klux Klan), in order to protect cherished principles like freedom of speech and assembly. In this case, there is no greater good, no cherished larger issue at stake; the only issue contested  is discrimination. There is no venerable tradition of lawyers defending laws that single out certain groups for discrimination.

DOMA forces the federal government to discriminate against same-sex married couples and to treat their families as unworthy of protection or respect. A law that serves only to designate some families as second-class citizens has no principled defense. Defending DOMA simply prolongs the harm to same-sex couples and their children. There is no countervailing good.  

A private lawyer is under no obligation -- from a state bar, pursuant to ethical rules, or out of respect for the adversarial process -- to defend an indefensible law. Those who choose to defend such a law do so at the peril of their reputations as fair-minded and just advocates. Clement has made a decision not just to stand on the wrong side of history but to lead the charge on that side and, sadly, to bring his law firm, King & Spalding, along with him. He is free to do so, but we should not pretend that decision represents a magnanimous fidelity to the adversarial process or to justice.

Throughout history, discriminatory laws have weakened our country's commitment to equality and fairness. Those laws have generally remained in effect until judges, lawyers and the public took a stand against them. And those powerful statements -- that people will no longer use their power or profession to foster discrimination and harm -- forced those viewpoints into the far fringes where they belong. There are moments in history where people are called upon to make such statements. This is one of those moments. King & Spalding had an opportunity to use its considerable power to further justice, not perpetuate discrimination. In declining to do so, it acted in a way that is indefensible.

--Maya Rupert

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Photo: Same-sex couple Nowlin Haltom, left, and Michael McKeon hold a sign calling for the repeal of the Defense of Marriage Act outside the county clerk's office in Los Angeles in February. Credit: Robyn Beck / AFP / Getty Images

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