April 27, 2011
Gay Marriage Hits
By Mike McManus
The surprising political power of the same-sex marriage movement
hit two legal setbacks this week on the West and East Coasts.
In 2008 California voted by 6.3 million to 5.8 million in favor
of Proposition 8 to approve a state constitutional amendment limiting
marriage to the union of a man and a woman. Last year Federal Judge Vaughn
Walker declared Prop 8 unconstitutional.
During the trial in June, I asked, “How dare”
he even hear the case? “Walker is an open homosexual. Had he been an
honorable judge, he would have recused himself,” I argued.
After retiring in February, Walker disclosed
that he had been in a same-sex relationship for 10 years! Federal law
requires a judge to disqualify himself whenever the judge knows that he has
any personal interest that could be substantially affected by the outcome of
“This changes everything,” asserted Ron
Prentice, chairman of ProtectMarriage.com which fought to uphold Prop 8.
“Based on his decision to rule Prop 8 unconstitutional, he can then marry
his same-sex partner.”
Therefore, ProtectMarriage asked the U.S.
District Court to throw out Judge Vaughn’s decision invalidating Prop 8 – a
major setback for same-sex marriage.
Similarly, gay marrige advocates seemed to
have won two major battles in Washington DC. First, they persuaded the
Obama Administration to cease defending the Defense of Marriage Act (DOMA)
that was passed overwhelming by Congress and signed into law by President
Clinton in 1996. The vote was 342-67 in the House and 85 to 14 in the
DOMA declared that marriage in federal law
“means only a legal union between one man and one woman as husband and
wife.” So if a “spouse” in a same-sex union in Massachusetts filed for
Survivor’s Benefits for a deceased partner, they could not collect. Nor is
any state obliged to honor gay marriages recognized in other states.
However, Attorney General Eric Holder
announced Justice would not defend the law because the President thought it
was unconstitutional. This is a profound error. Obama took an oath to
“uphold” the laws of Congress.
Fortunately, the House of Representatives
decided to defend DOMA, and hired Paul Clement, a former U.S. Solicitor
General, of a prominent Atlanta law firm, King & Spaulding, However, gay
activists at the Human Rights Campaign brought so much pressure to bear on
the firm through such clients as Coca-Cola, that King & Spaulding withdrew
from the case days later.
To his great credit, Clement promptly
resigned from the firm and moved to another so that he might continue the
fight for DOMA. In a resignation letter, Clement asserted, “I resign out of
the firmly-held belief that a representation should not be abandoned because
the client’s legal position is extremely unpopular in certain quarters.
Defending unpopular decisions is what lawyers do.
“”Efforts to delegitimize any representation
for one side of a legal controversy are a profound threat to the rule of
law. Much has been said about being on the wrong side of history. But
being on the right or wrong side of history on the merits is a question for
the clients. When it comes to lawyers, the surest way to be on the wrong
side of history is to abandon a client in the face of hostile criticism.”
Clement’s decision is courageous. As
Solicitor General he argued more than 50 cases before the U.S. Supreme
Court. His departure is a great loss for King & Spaulding.
And guess who had high praise for Clement’s
decision to stick with the case?
Attorney General Holder told reporters, “Paul
Clement is a great lawyer and has done a lot of really great things for this
nation. In taking on the representation – representing Congress in
connection with DOMA, I think he is doing that which lawyers do when we are
at our best. That criticism (of him) I think was very misplaced.”
Family Research Council President Tony
Perkins praised the Attorney General’s opposition to the “smear and silence
campaign against Paul Clement (which) has gone too far…For the last several
years, homosexual activists have managed to frighten most of corporate
America into tiptoeing around the homosexual community.”
However, Perkins properly noted: “It is
President Obama and the Attorney General who created these circumstances.
Attorney General Holder abandoned their client, the U.S. House of
Representatives. Had President Obama fulfilled his constitutional duties to
enforce and defend the law, outside counsel would not have been needed.”
The gay legal momentum hit important snags
this week on the East and West Coast. And gay marriage was not approved in
Maryland and Rhode Island last month, as expected.
There is hope for preserving traditional