The Trouble with DOMA

Marshall Thompson

The high-priced firm that Rep. John Boehner hired to defend the Defense of Marriage Act dropped out yesterday amid pressure from its clients. This comes after the Obama Administration decided that the law was constitutionally indefensible and passed the onus on to the House of Representatives to defend it in February. Former Solicitor General Paul Clement, who originally contracted with Rep. Boehner to defend DOMA, has resigned and moved to a different firm to continue representing the House.

I love watching DOMA go down in flames. It’s a discriminatory law that probably can’t survive even rational basis scrutiny.

The precedent of the case, however, will be much more valuable for future gay rights cases if it has a robust and effective defense.Clement makes a good point in an interview with NPR: “More important than any one issue is the idea that we have an adversary system of justice … [I]t just doesn’t work if you say that defending one side of the controversy is completely out of bounds.”

I have mixed feelings about this latest set back for the DOMA defense. On one hand, I want to see them run into every possible hurdle. I love seeing how our society, in general, has come to recognize DOMA for what it is: unacceptable and indefensible.  On the other hand, I would also like this to be a landmark case for gay rights. That would require, however, that Clement and his team have enough time and resources to bring the best possible arguments and defenses.

So, here’s hoping that Clement does the best he possibly can, and then fails completely.


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