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Defense of Marriage Act: Attack the law, not the lawyer

We don't like the Defense of Marriage Act. But it deserves a good lawyer to make its case.

April 21, 2011

The Human Rights Campaign has been a powerful force for the rights of gays and lesbians, but the organization has stumbled in objecting to the hiring of a former solicitor general to defend the constitutionality of the Defense of Marriage Act. The tradition of lawyers defending unpopular or controversial clients is an honorable one.

DOMA, which defines marriage as the union of one man and one woman and permits states to refuse to honor same-sex marriages performed in other states, is wrongheaded, and we welcomed President Obama's decision not to defend it. But that doesn't mean the House of Representatives, which took over defense of the law from the administration, shouldn't retain the ablest counsel available. Former Solicitor Gen. Paul D. Clement, a renowned Supreme Court litigator, qualifies.

That is too much for the Human Rights Campaign, which assailed the decision by Clement's law firm to take the case as "a shameful stain on the firm's reputation." Joe Solmonese, the organization's president, said the firm was "aiding and abetting an effort to score cheap political points on the backs of same-sex couples."

It's perhaps understandable that leaders of an advocacy group like the Human Rights Campaign would be outraged at the idea of anyone defending a law that they so strongly believe is discriminatory. But the suggestion that it's shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible.

The relationships between lawyers and clients in political cases don't follow a single model. Often, as with the legendary left-wing lawyer William Kunstler, there is an ideological affinity between lawyer and client. Theodore B. Olson, a predecessor of Clement's as solicitor general, has led the challenge to Proposition 8 and is personally in favor of same-sex marriage. But other lawyers regularly argue positions with which they disagree and represent clients they hold in contempt.

In criticizing Clement's law firm for agreeing to defend DOMA, the Human Rights Campaign contrasted that decision with the firm's admirable record in promoting equality for gay and lesbian employees. But there is no contradiction — unless one believes that DOMA doesn't deserve a defense. We hope Clement loses, but we don't begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.

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