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No Defense for DOMA

If you're not sure what the Defense of Marriage Act is, read What is DOMA?.

On February 23 of this year, we have United States Attorney General Eric H. Holder Jr. sending a letter to Congress stating that the Justice Department has changed its position on DOMA, the Defense of Marriage Act. The Justice department will take the position in court, and more specifically in two pending cases, that the Defense of Marriage Act should be struck down as a violation of same-sex couples' rights to equal protection under the law. The objections of the Justice Department are that, first, section 3 of DOMA violates the equal protection component of the Fifth Amendment with respect to same-sex couples who are legally married under state law.

In response, House Speaker John Boehner and House Republicans hired Paul Clement of the King & Spaulding law firm to defend DOMA. Clement is former U.S. Solicitor General under President George Bush. What's more, Boehner wants the DOJ to pay Clement's pricey legal fees, and sent House Minority Leader Nancy Pelosi (D-Calif.) a letter on April 18th, 2011, demanding that the DOJ foot the bill for defending a law that the DOJ has already stated is unconstitutional. I note that the Republicans have signed a contract authorizing Clement to be paid $520.00/hour, from tax payer funds—including taxes paid by those who oppose DOMA. King and Spaulding stood to make as much as $500,000 from their involvement.

Then on Monday April 25 Clement's firm King & Spaulding announced that they would not be defending DOMA on behalf of the U.S. House of Representatives. The firm, previously known as a LGBT friendly workplace, came under a great deal of public criticism from LGBT activists and the LGBT communities, including Lamda Legal. King & Spalding chairman Robert D. Hays made a statement in which he announced that the firm was withdrawing, noting that "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate." Scant minutes later Paul Clement announced that he would still be defending DOMA, but as a partner of Bancroft PLLC. In Clement's resignation letter he notes:

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 positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.

Then, on April 27, the Virginia Attorney General, Ken Cuccinelli, no friend to LGBT or women seeking equal rights, fired off a letter to the law firm of King and Spaulding. In the letter, Cuccinelli fires King and Spaulding's firm as the state of Virginia's Special counsel, noting that he is viewed their decision to turn down the House of Representatives as dropping a client "associated with marriage." I note here that in actuality, Spaulding and King are dropping a client who is essentially requiring them to defend a bigoted and discriminatory law.

While I applaud Mr. Clement's stance on legal defense, I do not appreciate tax payers monies being wasted on defending an unconstitutional law that attempts to step on the rights of individual states, as well as LGBT citizens and tax payers. It remains to be seen whether Paul Clement and the Republican House can defend the constitutionality of a law that the DOJ and federal judges. have found indefensible. For updates on DOMA and legal procedures, see DOMA Watch.