Friday, April 29, 2011

More commentary on DOMA defense and the law

Dale Carpenter looks at evolution of the legal profession on gay rights
[King & Spalding's] its reversal suggests the extent to which gay men and lesbians have persuaded much of the legal profession to accept the basic proposition that sexual orientation is irrelevant to a person’s worth and that the law should reflect this judgment. The decision cannot be dismissed simply as a matter of political correctness or bullying by gays.

Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.
But there's no lack of a defense.
[T]he House will have excellent counsel on its side: a former solicitor general who resigned from King & Spalding to protest its decision. The world of legal professionals is still a diverse one where basic values collide every day. Respectable constitutional arguments for the Defense of Marriage Act will surely be made — but grounded in ideas, one hopes, not contempt.
It's hard to see what those ideas will be. Kay Kendall:
In order to justify the defense of a law, it must be possible to identify some principle that deserves to be vindicated, and here, there simply is none.

DOMA was passed in order to express moral disapproval of LGBT people. It does not embody conflicting principles that need a full-throated defense on both sides to produce a just and fair result. The sole purpose of DOMA is to discriminate against same-sex couples. It perpetuates harm against an underrepresented community and singles out certain families for unequal treatment from their government. No self-respecting lawyer or law firm should be willing to tarnish their reputation by defending such an appalling law. King and Spalding's decision to withdraw was a turning point in this struggle because it symbolized a shift in power between those who understand that simple truth and those who do not.

Of course there was pressure brought on King and Spalding. Economic pressures are brought all the time -- the anti-equality guys played that card quite aggressively during the Prop8 campaign, where they made many threats. But not least of that pressure was brought from its own staff and associates, appalled that the firm was basically attacking its own, dismayed that the government contract illegally presumed to gag them:
“Partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation ... that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”
There's no doubt that DOMA will receive a robust defense from the right wing. What's doubtful is that any rational legal basis for discrimination will be advanced sufficient to persuade a reasonable jurist.

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