Groups such as the National Organization for Marriage are praising the defense that Paul Clement is giving to marriage discrimination and the Defense of Marriage Act in the case US v. Windsor. Unfortunately, Clement’s defense may be based upon a flawed premise.
According to the Washington Blade, Clement, who is representing House Republicans in the case involving DOMA, argues that the Department of Justice lacks standing to participate in the lawsuit. The Department of Justice filed an amicus brief in the case whereby they argued that DOMA was unconstitutional.
Clement is claiming that the Obama Administration lacks standing in the case because they received the result it wanted from the lower courts. Clement’s brief states that “It obtained the precise relief it believed was appropriate based on the precise theory (heightened scrutiny) it advocated. The executive can fare no better before this Court. While this Court’s affirmance would have a greater precedential impact, the executive cannot ground its appellate standing on a desire for an opinion with the identical effect on this case and controversy, but a broader precedential scope for other cases.”
Clement also states that “Indeed, without the House’s participation, it is hard to see how there is any case or controversy here at all. Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund. And the lower courts granted them all the relief they requested. Only the House’s intervention provides the adverseness that Article III demands.”
The Obama Justice Department abandoned the defense of DOMA two years ago and has filed several briefs against the anti-gay law, and litigated against it without the courts saying that it could not.
In trying to bolster the appearance that his position has broader support than it does, Clement even claimed that “While the Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.” The Democrats have not signaled any support for BLAG’s positions, and only believes that the case should be heard.
Clement is offering a flawed premise with regards the case. It is not unheard of for a Department of Justice to argue in favor of striking down a law due to its lack of constitutional merit, and certainly not unprecedented for a Solicitor General to abandon a case on grounds of a lack of constitutional merit. In fact, it is likely that Paul Clement did that while solicitor general.
To date, Clement has offered very little other than tortured logic to support his positions, and this appears to be another one of those instances. He seems rather badly informed on the law itself, in fact.
One almost has to wonder if he’s deliberately throwing the case.