Paul Clement has been the lawyer for the House Republicans at about $520 per hour. He was hired to defend the Defense of Marriage Act in the courts. So far, Clement has cost the American taxpayers some $3million for his, so far, failing efforts to defend the law. Last night, he filed a sixty page brief explaining to the best of his ability why marriage discrimination should remain in place.
Apparently, Clement decided that the Constitution matters little when it comes to the rights of minorities. He used recent electoral victories to claim that LGBT Americans were powerful politically and capable of winning at the ballot box. He apparently managed to point out that the political power includes less than half of Congress, and that President Barack Obama and Vice President Joe Biden both believe in marriage equality. What’s more, he pointed to the fact that exactly one percent of the Senate is openly gay.
Clement even wrote:
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. . . . Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. . . . [G]iven that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.
One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”
Actually, throw that out entirely. Let us be absolutely clear about something. A law cannot contradict the Constitution. Should DOMA remain in force, it sets the precedent that the Constitution can be ignored entirely even by the Supreme Court. DOMA repeatedly contradicts the Constitution. It unconstitutionally allows the states to ignore contracts entered into in one state because of the nature of the contract. Allowing DOMA to stand would allow the Federal Government to create laws which would allow them to, say, permit the state of Utah to outlaw divorce, and a divorce entered into in New York would not be recognized in Utah.
DOMA also tramples heavily on the rights of the states without gain for the states. It forces the states to define marriage in a way that is defined specifically by the federal government, and in violation of the will of the majority Americans and the rights of those few states that have marriage equality. It may not seem important, but it really is especially in the wake of all those people who clamor for more state’s rights.
DOMA violates the Constitution, when you get right down to it.
Yes, Clement’s arguments are absurd. A few political victories do not mean that the courts should not act. They actually underline that the courts must act.