In Defense of the Defense of Marriage Act

In Defense of the Defense of Marriage Act
by Daniel J. Flynn
Posted 05/02/2011 ET

Fifteen years ago this week, Congressman Bob Barr introduced the Defense of Marriage Act (DOMA).

Then, the legislation was so utterly uncontroversial that majorities of Democrats in both Houses of Congress voted for it and the Democrat in the White House signed it into law. Today, the man who introduced the legislation disowns it, the federal government refuses to defend its law in court, and the firm representing the House of Representatives has walked away from its client.

That last development made news this week past when talking heads strangely depicted the law firm’s buckling under pressure from the homosexual lobby as a profile in courage.

The Human Rights Campaign (HRC) naturally cheered the cowards it made cower. “King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law,” HRC President Joe Solmonese declared. “We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values.”

Paul Clement, the King & Spalding attorney representing the House of Representatives in the DOMA challenge, had a different reaction. “Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law,” he lectured. Putting principle above politics, Clement resigned.

Providing clients the best possible legal defense has been as much a part of the attorney’s creed as the Hippocratic Oath has been a part of the doctor’s. Saying that every litigant deserves the best advocate has become almost a mantra for lawyers representing the likes of everyone from O.J. Simpson to Father Paul Shanley to Khalid Sheikh Mohammad. But some causes—not murder, child rape, or terrorism, mind you—are apparently so disreputable that even lawyers want nothing to do with them.

The cause at issue is a law passed overwhelmingly by the people we elect to represent us. DOMA doesn’t forbid states from recognizing gay marriages. The law merely affirms the same definition of marriage—one man, one woman—that has always prevailed in the United States and protects states from having to recognize homosexual marriages recognized by other states.

This is controversial?

Many of the people saying so didn’t always think it so. It’s not just that the Democratic Senate leadership voted for DOMA back then. The current leadership—Majority Leader Harry Reid, Majority Whip Dick Durbin, and Democratic Conference Vice Chairman Chuck Schumer—also cast “yea” votes. House Minority Whip Steny Hoyer and Assistant Minority Leader James Clyburn voted for the measure too (Nancy Pelosi opposed). And their predecessors—Minority Leader Dick Gephardt and Minority Whip David Bonior—supported DOMA.

Leadership isn’t about following the political winds. But those called “leaders” often do just that.

Like the prominent law firm King & Spalding, prominent Democrats have succumbed to social pressure. The threat of being called a bigot isn’t much of an intellectual argument. But, as the reversals of both King & Spalding and the Democratic leadership demonstrate, it’s a lot more persuasive than reason.

Alongside the name-calling, there is the related tactic of proclaiming the inevitability of the cause to induce conformity—joining “the right side of history,” as the Human Rights Campaign puts it.

But history is the recorded past, not the imagined future. The right side of history has affirmed traditional marriage. In every state where homosexual marriage has been put before voters it has been rejected. Even voters in relatively liberal states such as California, Maine, and Oregon have balked at redefining marriage. That is what has happened, and what has happened is history.

Deeming our vision of the future “history” is as Orwellian as calling the union of two men a “marriage.”

That the battle to overturn DOMA takes place in the courts is a tacit admission that the law’s opponents know that, like the past, the present doesn’t care much for homosexual marriage either. If America wants gay marriage, why not schedule a congressional vote to repeal DOMA?

Being on the wrong side of the American people isn’t generally the formula for being on the right side of history. By undermining the rule of law, and the democratic process that creates those laws, the ends-justify-the-means advocates of homosexual marriage place themselves on the wrong side of their countrymen—and posterity.
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