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DOMA: Wise counsel in same-sex marriage controversy

Paul Clement It would be a bit much to confer the title of "Profile in Courage" on Paul Clement, the superlawyer who resigned from his law firm after it caved to gay-rights activists. Clement, a former U.S. solicitor general and a master litigator, already has found gainful employment elsewhere and will continue to represent the House of Representatives in defending the Defense of Marriage Act.

But in leaving the firm of King & Spalding, Clement offered an eloquent statement about the responsibility of lawyers: "I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending  unpopular clients is what lawyers do." This is civics book stuff, but it's controversial with some gay activists. Evan Wolfson of Freedom to Marry referred to Clement as a "hired gun," an appellation that can describe any lawyer who doesn't work pro bono. (If Clement defended DOMA out of conviction, he would be abused even more.)

The law firm's critics raised a side issue: that the House Republicans' contract with King & Spalding prohibited lawyers at the firm from commenting on DOMA. If that's the case, the firm overreached. But it beggars belief that it dropped this hot potato  because of that provision rather than because of the efforts of Human Rights Campaign, the gay-rights organization, to "shame" the firm. 

DOMA is a regressive law. But both sides in any case are entitled to "hired guns."


Out front on gay rights

Respecting all marriages

Same-sex weddings, now

Blowback: Nothing defensible about DOMA

Defense of Marriage Act: Attack the law, not the lawyer

-- Michael McGough

Photo: Paul Clement in a photograph dated August 27, 2007. Credit: U.S. Department of Justice/MCT


Comments () | Archives (45)

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This is a civil matter. Not a criminal matter.

Their EXISTS no statutory right to legal counsel in civil matters.


Please do not confuse an already confused public about the right to a vigorous defense: that right exists for persons, not laws. No law "deserves" to be defended, whether you like it or dislike it.

DOMA already had its day in court, remember? A Massachusetts judge deemed it unconstitutional. Yes, the Straight Supremacists, homophobes and religionists aren't happy with this. But any further defense is motivated by politics and money, not legal virtue.

Mr. Clement likes DOMA and its ill effects on legally married gay couples (politics) and/or he likes his wallet (money).

Chuck Anziulewicz

As a taxpaying Gay American, I really resent John Boehner using MY tax dollars to defend something as transparently unconstitutional as the Defense of Marriage Act.

WHY is DOMA unconstitutional? Consider: A Straight couple legally married in Iowa is automatically entitled to 1,138 legal benefits, protections, and responsibilities according to the Government Accountability Office (GAO). Many of those benefits have to do with tax law, Social Security, inheritance rights, child custody, and so on. But because of DOMA, a Gay couple that is legally married in Iowa is still unrecognized by the federal government for those benefits.

Consider, also, the "Full Faith & Credit" clause of the Constitution. Because of this, any Straight couple can fly off to Las Vegas for drunken weekend, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, and at all levels of government. But thanks to DOMA, a Gay couple that is legally married in Iowa becomes UN-married if they relocate south to Missouri.

The ONLY real difference between a married Gay couple and a married Straight couple is the gender of the two people who have made the commitment. It has nothing to do with procreation, since couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. So there is really no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits, protections, and responsibilities that married Straight couples have always taken for granted. This cannot be accomplished in a piecemeal, state-by-state fashion.

I am fully aware that a significant (if dwindling) number of people still oppose marriage equality for Gay couples. But that opposition comes purely from prejudice and discomfort, not from any understanding of Constitutional law.

Virilene Manly

Yes, and Bull Connor was just upholdin' The Law. ....Right.

Steve Rogers

Good for him:)

Pattrick Lewis

Certainly President Obama's decision to not defend lawsuits against the Defense of Marriage Act is controversial because of the polarizing nature of the issue.
And... I understand the ethics of defending and compulsion to defend a law even if it's unpopular, but why start here, now, on this particular law?

This is nothing new. For example, this and previous administrations have decided to not enforce laws prohibiting the import of prescription drugs into the U.S. Clearly it's "against the law" to buy prescription drugs from foreign pharmacies. Yet Americans do it every day in order to limit their cost of necessary prescription medications. (See http://www.fda.gov/ForIndustry/ImportProgram/ucm173743.htm)

This is simply one example of a presidential administration making the decision to not actively enforce a particular law. Yet I don't see lawyers quitting law firms over it.


After thousands of years of universal understanding that marriage is a male/female institution by billions of people, the word "marriage" no longer exists as a definable concept. Consequently, the word "marriage" should be removed from all civil documents.

Louis E.

I'm not religious,conservative,or Republican...but I am wholeheartedly in favor of DOMA and if it can't be declared constitutional then changing the Constitution is required.
To treat same-sex sexual relationships as if they did not harm society,homosexual orientation as if it excused such relationships,or anything involved as a matter of equal protection of classes of persons rather than standards of conduct applicable to all rather than only those not minded to violate them in the first place,is flat-out ridiculous.
The self-righteousness of the homosexual lobby would embarrass most Bible-thumpers.They think they can intimidate people out of standing against them (it worked on the psychiatrists).But unless we want laws against drunkenness to be struck down as "bigotry" against alcoholics,or kleptomania to be a defense against all charges of theft,we need the gumption to slam the door on the abuse of "equality" as applied to conduct of manifestly unequal usefulness to mankind.(Reproductive intent or capacity is legitimately covered by a couple's privacy,but the public interest in their being of opposite sexes in order to qualify as a marriage is clear).

Richard Johnson

I smell (Republican or Tea Party) political ambitions.


Don't you people know that the koran calls for all gays to be executed. Islamics will soon have control of this nation and they will take care of Gay marriages and many of the other vices that are prevalent in America.


Much like Prop 8 here in California and also with similar comparisons to DOMA the key question is with 'standing'. How have heterosexuals been harmed by gay/lesbian marriage? Without harm, there is no damages.
What secondary harm comes of gay/lesbian marriage? Unlike drug addiction, while there may not be any direct 'harm' to society with exception of the individual, secondary harm could take place as robberies, prostitution, homelessness, etc, on society because of such addictions and thus why there are laws when using those types of drugs and their applications.

Equal rights for all unless you're (insert race/gender/religion/sexual preference/not bipedal here)... is what the world was in the past and some are trying to keep us there instead of allowing the FULL rights and EQUAL protection under so said constitution.

Where is the harm of gay marriage? How does it affect/harm you? Not your beliefs but actual harm.


Louis E., you equate homosexuality with theft and alcoholism. There is not one iota of scientific support for such an equation. Your position, I'll wager, is based on the Bible, and the Bible is not the U.S. Constitution (which in fact makes no mention of god or the Bible except to say that Congress shall make no law establishing any religion). What harm does homosexuality, or indeed same-sex marriage, do to society? Absolutely none. In fact, it is an objective good. Stable homosexual relationships are less likely to overpopulate the world, as heterosexuals have done. Your ignorance and prejudice are gloing the way of the dionosaurs. Good riddance.


....I suppose Mr Clement's fallacious argument would be the same had the Republican House retained him to do away with Womens' Right to Vote. The Republicans are not "wronged" by the DOMA statute. Therefore, their cause differs from the usual defendant's attempts to set aside an unconstitutional law. Rather, in this case, the Republicans' cause is to preserve discrimination against another group and such a cause does not rise to merit representation!


The same-sex-marriage controversy really is not about rights; it never has been. Do straights really care whether gay partners are allowed in the hospital room, or how they file taxes, or...? It is about using the government to establish social norms, what is socially acceptable and what is not. This is not what government is for. The government once had a societal interest in the protection of women and children, and therefore stuck its nose in marriage. With the apparent triumph of Feminism, the progression of gender equalizing technology (today women are better educated, and apparently earn more conditional on education and work experience), and the utter trivializing of the marital contract (gays are not responsible for that) the government's original interests seem moot. Abolish government granted marriage privileges for all, but leave this question of morality to individuals--it is really not determined by vote.


Who cares the shysters loaded


with taxpayer money for defending this crap for the House




I don't buy it. I think a legal firm, especially a high-profile DC firm, caving to some special interest pressure "beggers belief" FAR more than the idea that their contract got them into questionable legal territory that could have at least compromised their ability to defend DOMA (if not cost them a bunch of their own money).

As much as I can understand the argument that a proper trial would add legitimacy to the overturning of this unconstitutional law, I think there are much better uses for our tax dollars!


That Half of Million Dollars could help a lot of small businesses at this time. Why defend a law that discriminate against a class of US citizens?


This is NOT a profile in courage. If you'd bothered to read that book, it was about people who took the unpopular stance ON THE RIGHT SIDE OF HISTORY. Carpetbaggers, Jim Crow enforcers and such were not profiled in the book. You'll never see George Wallace as a profile in courage and you won't see this jerk as one either. You might want to open a book before you open your mouth.


Oh, please.

There's "unpopular," and then there's "offensive, backwards, and discriminatory." I resent Clement's co-opting of the language of civil rights to advocate for a position rooted in discrimination. He's not a brave freedom fighter; he's a lawyer who's going to rack up his billable hours on this case one way or another.

As others have said, laws have no right to counsel or to a vigorous defense, and law firms are free to take and drop clients and cases as they choose. If Clement is "courageous" for continuing to defend DOMA on our nickel, then so is his former firm for recognizing that (as HRC pointed out) their defense of DOMA flew directly in the face of their stated commitment to diversity.


I find your editorial personally offensive and insensitive. A law which legal scholars (such as our President who taught constitutional law at a leading law school) and at least one court have determined to be unconstitutional is NOT automatically entitled to legal representation in an APPEAL!!! This is not the same thing as the ACLU representing neo-Nazis or the like. I am legally married here in California but am being forced to spend thousands of dollars of my retirement savings on accountants and federal taxes because DOMA does not allow the US govt to recognize our legal marriage. That is on its face unconstitutional! I resent having these taxes turned around and used to further discriminate against me. Why can anti-choice people keep the government from using their tax dolaars for something they don't like but we LGBT's can't???


This is political positioning on Clement's part, no more, no less. He fully realizes the impact his side-choosing will have on his future as a conservative judge and politician, even though he likely knows his position is a losing one. Meanwhile, he'll be paid thousands and thousands of tax dollars to hold the conservative line. I don't blame him, but I also think his heart is blacker than coal.


Let's go defend slavery again while we're at it.


I AM IMPRESSED by the Times' statement - I really am, since this paper has managed to give in this homosexual rights matter only glaringly biased, and ACTIVELY PARTISAN coverage - like in this non-sense that the homosexual marriage is.

In a prior post regarding this matter I described Paul Clement as a "man for all seasons" (Thomas a Beckett, for those history impaired), and now I will add here the iconic figure of Atticus Finch facing the mob -
Yes, and mob is the crowd of homosexual marriage activists, a mob whose acts have for long, and under the supectly indulgent eye of the MSM and the Courts, intereferred with the due process of elections and law in this country -

The atacks on Clement, however, have misfired and, as I said before, it show that the homosexual lynchers are prey to great (and justified) anxieties that their false rights movement has PEAKEd, and now their influence is receeding - the Iowa election, the Target affair, the Doma brouhaha, the latest DADT hearings, the likelihood that Walker's ruling will be invalidated because he had a standing interest in its outcome, etc., all these show that the homosexual rights frenzy is losing traction, and soon we'll return to normalcy -
... i.e. defining homosexuality as a disease which shouldn't and must not receive a special social status -

At least this, in an otherwise distresssing landscape this nation has been brought by the democrat party -

Bye -bye -

Ironman Carmichael

The only real pressure the DOMA lawyers are under is to come up with one fair, honest, rational, logic-based reason for banning same-sex marriage that will stand up in court. "Same-sex marriage will make too many people uncomfortable" won't; neither will the Bible, which legally speaking is hearsay. (Somebody should really subpoena God: if God doesn't honor the subpoena, it's an automatic mistrial.)

So far, all we've gotten are the three P's: procreation, polygamy, and prejudice.

Mark L Holland

Let me see, using tax money to pay lawyers to defend a Evangelical inspired law, that is in contradiction to the constitution of the United States. I wonder why I all of a sudden smell Fish.

Oh yea now I know it is that old separation of Church and State thingy.

Mitchell Young

"How have heterosexuals been harmed by gay/lesbian marriage?"

I am harmed because an institution which always and everywhere has been reserved for male-female couples has had its meaning radically changed. I am harmed in effect by being forced by my government to say 4=5, just like in that book by Orwell.

Society is harmed because it has an interest in promoting its continuance, which is carried out through coupling of males and females. We also have an interest in getting as many bisexuals -- which recent studies suggest outnumber homosexuals-- to decide on the procreative option. Much has been made of elderly or infertile couples . Aside from the old adage that hard cases make bad law, the infertility example is preposterous because how would the government know, and in the first case the proper form for procreation is still retained, providing a model for younger persons.

As for those complaining about taxpayer dollars being used to defend this law -- there are plenty of things I don't like taxpayer dollars being used for. I don't use cannabis, wasn't thrilled that the Feds went to the Supreme Court to undermine California's medical marijuana laws. As a heterosexual male that doesn't frequent prostitutes or inject drugs, I am virtually guaranteed not to get HIV, but you don't here me kvetching about my tax dollars being spent on HIV /AIDS research, prevention campaigns (including grants to various 'Gay Men's Health Projects).

This whole affair shows who the real bullies are --the activists that label as 'bigoted' those of us who seek to maintain an institution that has existed literally thousands of years as a bond between male and female, that until around 30 years ago no one would have even thought of stretching its definition to same sex couples. Nor is this simply a matter of tradition, its basis in our nature as a species is shown in the definition of marriage around the world, across civilizations. It is not only evangelical Christians, but Japanese Shinto, Hindus, Muslims, Taoist Chinese, even (a few years ago) communist Soviets who defined marriage as between man and woman (though not necessarily limited to pairs). It seems to me the real bigots -- in the sense of those who will not see anything but their own viewpoint -- are those who insist that somehow hundreds of human generations, around the entire globe, had it wrong and they have it right.

David Blackburn

As he said, it's what lawyers do. In addition, some convince clients with deep pockets that they've got a case and then bilk them.

Mark L Holland

My only objection is that this guy is being paid out of the public money, if the repubs were paying for it out of their own pockets, that would be one thing but to use tax payer money to pay a lawyer to fight for a Christian Evangelical Fundamentalist law based upon bigotry, in contradiction to the constitution of the United States turns my stomach.


My how the heathen rage! This is usually what is witnessed when cocky, self-assurance disintegrates into panic mode.
The homosexual agenda has run it's course and now the darkness is closing in on their distorted notions of equal rights.
They use thin lies to support their justification. "My partner can't visit me the hospital", "my partner won't be allowed an inheritance", etc. Every one of their strawman arguments can be resolved via various contracts.
BEHAVIORS should never rise to the level of deserving protections. If this were true, ask, where will that slippery slope bottom out? Other perverts, pedophiles, NAMBLA wanting to marry or molest children, serial murderers , kleptomaniacs, people torturing animals? Every one of them could potentially raise some "I was born like this" plea.
I think Louis E. put it perfectly in 8 simple words, we must: " slam the door on the abuse of "equality"."


Under the constitution anyone, regardless of orientation, can marry someone of the opposite sex, while no one, regardless of orientation, can marry someone of the same sex. The application for a marriage license doesn’t even ask about orientation, or if you love your fiancé. Which group is not being treated equally?

My understanding of the 10th amendment is that it guarantees states rights in such matters. In fact, the citizens of 30 states already voted on this. It was rejected every time by the voters, even in the most liberal states.


DOMA says that the federal government can treat legally married straight couples more favorably than legally married gay couples. Why? What does the government or society get out of treating one set of married couples differently than another? What statement are the feds trying to make?

As a straight person, I don't think straight people are better than gay people. If the government feels differently, why not give special rights to straight people generally, whether they are married or not?

Former Lawyer

I think that the editorial gives Paul Clement way too much credit. I think that it is entirely possible that he has undertaken this representation not because he believes that the statute should be defended because it is the right thing to do, but rather out of pure self-interest. He knows that by taking on representation of a matter that is dear to the hearts of many die-hard Republicans (especially the evangelicals), he has insured that whenever Republicans need outside counsel, they will come to him first. Thus, he will be assured of much more legal work for the Republicans in the future.

ken speakes

there are so many that just want to live, love....

ken speakes

there are so many... that just want to live.. loved....


Pretend for a moment that DOMA had nothing to do with the gays, but targeted African Americans. Would the Times opinion staff have a different attitude and continue to support of their "courageous" lawyer? Is the defense of DOMA Okay because it targets the gays, and therefore, not the equivalent of racism? This attitude is the equivalent of sexism and homophobia, and the Times opinion staff are blind know-it-alls who are wildly wrong!


I disagree with the substance of this piece, as I did with the last editorial the Times published on this matter. But for the most part, I disagree as a matter of opinion.

My real issue with this editorial, though, is in its next-to-last graf. In commenting on the gag order contained in the House contract with King & Spaulding, the Times says, "If that's the case, the firm overreached."

"If that's the case"? Really? Did the editorial writers somehow forget that the contract is publicly available, having been released last week by House Minority Leader Pelosi? Was it laziness? Or was/were the opinion writer(s) thinking they could pull a fast one on the readers by pretending that the terms of the contract between King & Spaulding and the House General Counsel were somehow unknown or unknowable?

To be clear: page 3 of this contract spells out the gag order. That contract is publicly available. Perpetuating a misconception that it's not is unworthy of the Times.


What legitimate law firm would defend the KKK, a kiddy porn producer, or a human trafficker? This was a wise business decision. Let the smaller firm of Bancroft, of Patriot Act fame, defend the indefensible law.

Randy E King

The Loving v. Virginia ruling on marriage is grounded in the definitions of the words at the time of said ruling. You cannot come in thirty years after the fact, coerce an expansion of the definition of a particular word, and then demand that this revised definition be applied to a ruling from the past; it happens to be a violation of intent.

There is no constitutional right to same-sex marriage.

This battle succeeds at shedding light on the underhanded and unethical dealings of same-sex activists. Little wonder the word depravity is often used as a descriptive when referencing this horde of miscreants.

John Bartlett

Why should ALL the taxpayers pay for defending this when ALL the taxpayers don't agree that it should be defended? Let the Republican party pay to defend this. The party who CLAIMS they don't want more government intrusion into people's lives. The party who CLAIM they want to concentrate on jobs and fixing the economy. How exactly does THIS create jobs and fix the economy or limit government?


Spalding is committed to social justice, diversity, and public service. This case was improperly accepted by an overzealous attorney trying to make a name for himself. He did not have the authority to accept this case without discussing it with the deciding partners.


Joe Bob

Oh, please.

Boehner mindlessly wasting half a million taxpayer dollars on a conservative loyalist insider--to demonstrate to evangelicals that Republicans still hate gay people. That's your "profile in courage" scenario?


It’s been 30 years! We are long overdue for a cure! Please support re:solve AIDS and the Chronic Disease Fund. resolvefromcdf.org


Dear Mitchell Young, if this were a court of law, and that is where DOMA will be tested, you would have failed the test. You can't answer your own question.

""How have heterosexuals been harmed by gay/lesbian marriage?""

"I am harmed because an institution which always and everywhere has been reserved for male-female couples has had its meaning radically changed. I am harmed in effect by being forced by my government to say 4=5, just like in that book by Orwell."

I love it when the federal judges ask this question, again, and again, and the Christianist bigot legal council can't answer it. The first time the question was presented was before the Perry v. Schwarzenegger trial, and the second time was during the appeal by a different federal judge. On two separate occasions, by the same bigot attorney, he couldn't answer the question. It seems like you power hungry, intrusive, Christianist zealots have given yourselves enough slack to hang yourselves on. Reap what you sow, bigot.



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