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Blowback: Nothing defensible about DOMA

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

 

Comments () | Archives (164)

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Randy E King

LandStander wrote the word "the"...

Copy and paste of out of context scripture only proves how much you "love and practice's a lie":

Revelation 22:14-15 – “Blessed are those who do His commandments, that they may have the right to the tree of life, and may enter through the gates into the city. But outside are dogs and sorcerers and SEXUALLY IMMORAL and murderers and idolaters, and whoever loves and practices a lie.”

LandStander

How are those passages of scripture any more "out of context" then the ones you post? The passages against homosexuality are just as clear, and just as in context as the passages condoning the purchase of slaves, the sale of your daughter, condemning the eating of shellfish as an abomination, and killing everyone with a different religion. You want more context? Here it is...

Leviticus 25:42 - The people of Israel are my servants, whom I brought out of the land of Egypt, so they must never be sold as slaves. :43 - Show your fear of God by not treating them harshly. :44 - "However, you may purchase male and female slaves from among the nations around you. :45 - You may also purchase the children of temporary residents who live among you, including those who have been born in your land. You may treat them as your property,"

Deuteronomy 13:12"If you hear in one of your cities, which the LORD your God is giving you to dwell there, 13that certain worthless fellows have gone out among you and have drawn away the inhabitants of their city, saying, 'Let us go and serve other gods,' which you have not known, 14then you shall inquire and make search and ask diligently. And behold, if it be true and certain that such an abomination has been done among you, 15you shall surely put the inhabitants of that city to the sword, devoting it to destruction, all who are in it and its cattle, with the edge of the sword."

Leviticus 21:17Speak unto Aaron, saying, Whosoever he be of thy seed in their generations that hath any blemish, let him not approach to offer the bread of his God. 18For whatsoever man he be that hath a blemish, he shall not approach: a blind man, or a lame, or he that hath a flat nose, or any thing superfluous, 19Or a man that is brokenfooted, or brokenhanded, 20Or crookbackt, or a dwarf, or that hath a blemish in his eye, or be scurvy, or scabbed, or hath his stones broken; 21No man that hath a blemish of the seed of Aaron the priest shall come nigh to offer the offerings of the LORD made by fire: he hath a blemish; he shall not come nigh to offer the bread of his God.

Bardic

Exactly. If the Bible got it wrong about the moral implications of slavery (the god of Abraham clearly indicates slavery is moral, condones it, and expected it to last) is it not possible the Bible is equally wrong about the morality of homosexuality? The answer is YES! The Bible DOES have it wrong about slavery. And about homosexuality.

platos

The core issue is not DOMA, but whether it should be defended. Ms. Rupurt declares it indefensible and therefore not worthy. If we go down that path what happens when power changes hands? If the courts are denied, will people start resorting to other methods, more violent methods? Are we abandoning the precept that we are a nation of laws and that the solution to "bad speech" is more speach?

Right or left, only defending the law when it is convenient sounds more like tyranny than democracy.

Prince Albert

next liberals will be demanding equal rights for Rapist's. Keeping in mind their current arguments that when they rape a woman it is their "nature" and should be allowed...

Bardic

@Prince Albert
Equal rights for rapists? Yes, because consensual sex between two adult men or women is exactly like someone getting raped. In demanding "equal rights" for rapists, you are automatically removing the rights of Women (or whoever you are allowing to be raped) from having the ability to consent to the sex they have. Rape is unfair and immoral because the one being raped DOES NOT WANT TO DO IT! While in a consenting gay relationship, nobody is being forced. So to say that gay people will want rape to be legal because its "natural" is completely ridiculous.

Randy E King

How dare you push your sense of morality on others?

Bigots in the same-sex enthusiast camp actually believe that their activity is the only activity worthy of special consideration. How may rapistaphobes are we going to have to reprogram before they finally realize the truth:

It is not a choice; they are born that way.

Bardic

@Randy E King
Your obviously ignoring the point behind my post. You cannot have the "right" to RAPE someone. That is taking something away from another person (such as mental stability, peace of mind, sense of security, etc. not to mention the physical harm) A rapist is raping someone, forcing them to have sex without their consent. A gay couple getting married is making a life time commitment to one another.

Randy E King

@ Bardic

You are ignoring my point; you do not have the right to have your depravity presented by the government as something that is acceptable to other peoples children.

Same-sex enthusiasts prove their mental instability every day through the depravity they insist on redefining just so they can live with the choices they made. Same-sex enthusiast cannot get married because a marriage is a joining of opposites and not a joining of incompatible reproductive organs.

You cannot have it both ways; though I know, by very nature of your depravity, you insist that you can.

Your sense of morality does not trump everybody elses. Who are you to say rapists are harming others; maybe these people are performing a public service?

GGGG

On gay issues, I feel like I'd rather read the NY Times. I feel like this newspaper is always mixing up weird ideas to come to a more homophobic compromise than I would imagine. Like taking the position that the other side has a fair viewpoint, too. I don't think they have a fair viewpoint and I don't think we need some sort of balance to accept them. And I think it's about time people started standing up and doing things like refusing to defend DOMA. Honestly, some of us are just beyond this and it's about time.

Bardic

@ Randy E King
Who am I to say that rapists are harming other people? Do you know what rape IS? That is a joke right? Rape as a public service? ....Let me know when you are back in the real world, so we can have an adult conversation here.

"Morality" is a fluctuating and living term. From slavery and rape, to interracial marriage, to numerous other examples, what is and is not "moral" changes from society to society, and through time. So you are right, MY sense of morality does not trump everyone elses. But neither does yours!
Secondly, I am not pushing my morality onto you by marrying my husband. However, you ARE pushing your morality onto me, by saying that I cannot because you think its immoral (Not that I am always against morality pushing, the "morality push" for people to accept interracial marriage, or to spurn slavery were very good morality pushes. I'm merely pointing out the contradictions in your accusations.)

Mark L Holland

Homosexual marriage is a secular and constitution matter, it should be allowed. But religious zealots want the secular world and constitution to conform to their religous bigotries. This cannot be allowed.

Ned Flaherty

Here’s exactly what Rep. Akin’s amendment #3 does (voted on 11 May 2011 by the Republican members of the House Armed Services Committee):

It would expand the original DOMA so as to prevent same-sex couples and their pastors from conducting private, religious ceremonies.

If passed, the federal government then would GUARANTEE that every heterosexual military couple and their chaplain may perform any private, religious wedding ceremony, but would DENY the same exact right to every homosexual military couple.

A century ago, states were outlawing private, religious weddings for bi-racial couples, but the Supreme Court declared all those laws unconstitutional on 12 June 1967.

Randy E King

Just one piece of factual data to support your ridiculous assertion that DOMA is unconstitutional would be nice; please do not present your misinterpretation of the 14th, 8th, 5th, and 1st Amendments as though they were facts.

" - The Supreme Court has upheld Congress’ requirement that some states outlaw polygamy and define marriage as one man and one woman. The Supreme Court has already upheld the constitutionality of the requirement Congress imposed on many incoming states that they must ban polygamy in their state constitutions as a condition of statehood. The Supreme Court wrote this memorable passage explaining the authority the Constitution grants Congress to define marriage, even for incoming states:

[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885)."

Question: Was the 1967 Loving v Virginia SCOTUS ruling based on the 1967 definition of marriage, or was it based on the1997 expanded definition of the word marriage?

 
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