Beating a dead horse #5 - more on DOMA case

As more leaks out about the King and Spalding decision to withdraw from defending DOMA for the House Republicans, it seems it may actually be about the discrimination itself, not about the constitutionality of the law, as I thought yesterday.

K&S has had a very progressive diversity stance, actively recruiting for gays and lesbians when hiring new lawyers; they have a diversity committee and domestic partner benefits; and they have done much pro bono work for the gay community. So you might argue that they were the very firm to take the case, because it would NOT be seen as just defending a lost cause for ideological reasons -- sort of like Nixon could go to China, where a more liberal president would have been suspect.

But this is not how it played out. There was reportedly "mayhem" within the firm, with threats of mass resignations from those who felt the firm would be betraying its principles. One of its major clients, the Coca-Cola Company, supposedly put pressure on them; the powerful Human Rights Campaign focused on the firm's clients and recruits, noting the hypocrisy of presenting oneself as a leader in gay causes, while working to harm gay families. There were threats of demonstrations.

On top of that, the coup d' etat: the contract with the House prohibited members of the law firm from engaging in any advocacy to "alter or amend" DOMA until the case is settled. This means that, for perhaps years, every lawyer in the firm -- including the gay and lesbian ones -- would be forbidden to speak or work against DOMA. This may have broken certain state laws and could be what the firm's chairman meant when he said their vetting had been inadequate.

Paul Clement's new firm, which was eager to take him in so he can continue representing the case, is more than happy to be associated with another conservative, high profile case. They will portray this as K&S bowing to political pressure from the gay community.

K&S will no doubt incur some tarnish from this, especially for "abandoning" a client. In his letter of resignation, Clement quoted the firm's giant presence Griffin Bell, Carter's Attorney General, as saying that a law firm is not required to take every case, but once you accept a client you do not abandon them.

But I think it will be tarnished more from taking the case in the first place than in bowing out when they looked more carefully at what it would do to their reputation and to their own internal relationships. In addition, they do have the more concrete issue of the gag order for all their lawyers on a highly controversial, hot topic.

All in all, I would say that this will move public opinion a notch closer to public acceptance of gay marriage, which is the ultimate goal. The trend is strongly in that direction all ready with polls recently showing a majority support for the first time; this will only speed it along, simply by calling attention to DOMA and its unfairness.

Ralph

Beating a dead horse #4 (this one's funny)

I'm not sure I can get this straight (pun intended):

Two years ago, Texas was one of the last states to change their law to allow a transgendered person to submit court-acknowledged sex change documents to obtain a marriage license. So, if John becomes Mary, Mary should be able to marry Joe. A heterosexual marriage, no?

But now the good people of Texas have waked up and realized that this is too close to allowing the marriage of two people of the same sex. After all, Mary was born John, and if John marries Joe, that's Gay Marriage. No, no, no way. . . . we can't have that.

So now a bill has been proposed in the Texas legislature to correct this unintended error. The new law would revert back to a 1999 state appeals court decision that says, when it comes to marriage, gender is assigned at birth and remains unchanged throughout life.

But here's another wrinkle they may not have thought of:

If, instead of wanting to marry Joe, Mary (nee John) wants to marry Susie, that would be allowed, because Mary is really still John according to the Texas appeals court and should be perfectly free to marry Susie -- a heterosexual marriage. No?

But isn't that even closer to same-sex marriage? Two women?

Go figure . . .

Ralph

Beating a dead horse #3

Last week, John Boehner announced that the House was hiring the presitious law firm of King & Spaulding to defend the Defense of Marriage Act in court and would pay $500,000 of taxpayers' money. The attorney was to be Paul Clement, who was Solicitor General in the Bush administration and now a partner at K&S.

The decision followed a 3-2 party-line vote of the House Bipartisan Legal Advisory Group to take up the defense of the law after Obama's Department of Justice declined to defend it when constitutional legal scholars advised them that parts of it were unconstitutional.

Get the picture? Legal opinion: it's unconstitutional; don't defend it; let the courts overturn it.

Also get this picture: Conservative are losing the battle over gay marriage (5 states plus DC allow it, DADT is dead, now DOMA is dead). Republicans need another way to pander to their anti-gay constituents, to keep the anti-gay meme alive.

So, despite public opinion that now supports gay marriage, and despite legal opinion that DOMA is unconstitutional, they will throw away half-a-mill that could go to reduce the deficit they're so determined to reduce.

But now, comes a new wrinkle.

King & Spaulding is withdrawing from the case,

. . . and Paul Clement has resigned from the law firm. The firm says they determined that the case had not been sufficiently vetted before they agreed to take it. Clement says he is resigning because he firmly believes that legal representation should not be withdrawn because of the unpopularity of the client's cause, and he will defend the case as a member of another law firm he is joining.

It's true that K & S might have suffered some loss of business because of this -- but this is a huge, highly respected law firm. They can weather protest over an unpopular case. My guess is that they looked further into the constitutionality and decided that there was no good defense to be made.

Taking an unpopular side in a case is one thing; mounting a stupid defense is another.

Ralph

Beating a dead horse . . .

Why give in to reality and public opinion (that now favors same-sex marriage rights) when you might be able to wring a few more votes by pandering to the anti-gay zealots? Never let it be said that Repubs left any doubt that their red-bloodedness is opposed to that whole gay thing that's sweeping the country.

Two last ditch stands:

1. The generals in charge of implementing the repeal of DADT reported to the House Armed Services Committee recently that their training of the troops for the transition is going very well and that they anticipate few problems in implementing the repeal.

Repub members of the committee didn't like it, in fact some simply refused to believe them. For example: one raised the question about the response rate to the massive survey they did of attitudes about repeal, which were surprisingly benign. The army general gave the percentage and said -- quite clearly -- that this was a typical response rate to such surveys. The next question from the dumb congressman was: "Why do you think the response rate was so low?" And, of course, then he demanded a new study (aka further delay), because this one obviously didn't get to the true feelings of the troops and their families (who essentially said: it's no big deal).

2. The Obama Department of Justice has made a determination not to defend the challenge in court to the Defense of Marriage Act, on the grounds that parts of it are deemed by legal experts to be unconstitutional. So the case would be heard without an official defense from the DoJ.

But John Boehner and his Repub troops ride to the rescue !!! They've got to save marriage as we know it !! (aka the votes of the right wing anti-gay zealots). Boehner has retained outside legal counsel to defend DOMA in court on behalf of the Legislative arm, with an expenditure of $500,000 of the taxpayers' money, and possibly more, to the prestigious King & Spaulding law firm.

Remember this at election time, folks: $500,000 for a futile defense of an unconstitutional law, but we've got to cut food stamp programs and health insurance for children. Remember !!

Ralph