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Paul Clement Relies Upon Tired Old Mistruths In DOMA Case

02 August 2011
by Bridgette P. LaVictoire

Former solicitor general Paul D. Clement and his legal team have been arguing that the Defense of Marriage Act has a presumption of constitutionality and that the US Supreme Court has already stated that “an exclusively heterosexual definition of marriage does not offend the equal protection clause.” Clement, the pet lawyer for House Speaker John Boehner’s anti-LGBT agenda, made the argument in a motion to dismiss the lawsuit Windsor v. United States which was brought by Edith Schlain Windsor.

The precedent cited by Clement and his team predates the rulings in which it was established that lesbians and gays were a protected class under the law, and predates Lawrence v. Texas by almost three decades.

Edith Windsor brought the suit because she was married to Thea Clara Spyer, a marriage recognized by the state of New York, but not by the United States. Windsor was forced to pay $363,000 in estate taxes whenn Spyer passed away.

The Obama Administration announced that they were not going to defend section three of the law because they believe “that classifications based on sexual orientation should be subject to ‘heightened scrutiny’ and the exclusion of same-sex unions would fail that examination.” In a rigged vote of the Bipartisan Legal Advisory Group of the House of Representatives or BLAG, Speaker Boehner threw Clement in to argue that the law is constitutional.

Clement and his team argued that the law should be reviewed under rational basis not heightened scrutiny, and that means that section three would be constitutional. There is a problem with this. In the case Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit ruled that Don’t Ask, Don’t Tell was subject to heightened scrutiny based upon the case Lawrence v. Texas. They ruled that in order for a law to pass contitutionality under that standard it “must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest”

Clement argued that DOMA does not infringe upon the “fundamental right to marriage, that ‘same-sex marriage is not a fundamental right’ and that ‘DOMA implicates federal benefits, not the right of same-sex couples to marry.’” Of course, this ignores several provisions of the United States Constitution including the fact that all contracts entered into in one state must be honored by all states and by the Federal government.

According to Law.com:

Under the rational basis test, Mr. Clement said, Congress could have acted rationally “in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution,” and it could have acted rationally to “protect the public fisc” in the balance it strikes in allocating federal burdens and benefits, and providing “consistency in eligibility for federal benefits based on marital status.”

Congress also could have acted rationally “to avoid creating a social understanding that begetting and rearing children is not inextricably bound up with marriage” and to “foster marriages that provide children with parents of both sexes.”

Finally, Mr. Clement states “any redefinition of marriage should be left to the democratic process.”

In other words, his entire argument is based upon the standard old lies that have been used by the normal run of anti-LGBT groups out there.

According to Law.com:

Mr. Clement’s motion was accompanied by an answer to a summary judgment motion made in June by lawyers for Ms. Windsor (NYLJ, July 12), led by Roberta A. Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, James D. Esseks of the American Civil Liberties Union and lawyers with the New York Civil Liberties Union.

In their papers, Ms. Windsor’s lawyers said the issue was straightforward: should the government be allowed “to levy a substantial estate tax upon Edie Windsor simply because, as a lesbian, she was married to a woman, instead of a man.”

Ms. Windsor’s team also cited the long history of discrimination against lesbians and gays, said that sexual orientation is an immutable characteristic that has no bearing on the ability to contribute to society, and said it was “impossible to credit” the contention that the law was “crafted by Congress to promote childrearing by heterosexuals.”

In fact, Clement’s entire argument is based upon the horrific and distorted views that come from men like Bryan Fischer or Tony Perkins. He argued that “persuasive authority unequivocally supports the conclusion that homosexuals are not a suspect class” and claimed that they have never been subject to discrimination or violence based upon the views that some in society have about lesbians and gays. He that “sexual orientation has ‘never’ been viewed as a suspect or quasi-suspect classification.”

He also wrote “Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the democratic process on issues ranging from same-sex marriage to ‘Don’t Ask Don’t Tell’ and beyond.”

It sounds like he knows that his arguments are pretty dead in the water. He also wrote “Whether a classification is ‘immutable’ is of course a legal conclusion—not a scientific one—and the Attorney General’s selective reading of scientific evidence warrants no deference from this court. His conclusion and the Plaintiff’s argument are also both wrong.” The scientific evidence shows that homosexuality is as immutable as skin color and is not as immutable as, say, religion. He then claimed that the terms homosexual, sexual orientation, lesbian and gay were “these terms are amorphous and do not adequately describe a particular class.”

The case will likely go to oral arguments in October.