Thursday, May 5, 2011

It's NOM For the...Win?

After the Obama Justice Department announced that it would no longer defend the discriminatory Defense of Marrica Act (DOMA), Rep. John Boehner hired the law firm of King & Spaulding, for a cool $500,000 of taxpayer money, to represent the House of Representatives' effort to defend it instead.

But then, in yet another dramatic twist to the Prop 8 debacle, King & Spaulding announced that it was withdrawing from the case. (DOMA is now being defended by another firm).

King & Spaulding's decision came after (a) the Human Rights Campaign (HRC) insinuated that the law firm's equality rating would suffer and threatened to launch a "full-throated educational campaign" aimed at clients and law school recruits, and (b) it was revealed that the King and Spaulding contract forbade all employees from publicly or privately advocating for the repeal of DOMA.

Now, like many legal commentators, I am critical of King & Spaulding's decision to drop their client after having signed a contract. Although, I will admit that I'm less critical than many commentators, given that the contract clause forbidding employees from advocating against DOMA might have conflicted with a California law prohibiting employers from forbidding political activitiy in their employees.

At the same time, I am critical too of the notion that any law firm or attorney that signs on to defend DOMA must be pressured into dropping that defense. DOMA is a horrendous law, yes. But let it have its day in court after both sides present their best cases. Unlike "marriage defenders" who want to forever conceal their legal performances before the open tribunal in Perry v. Schwarzenegger, I say let the world see our best case for equality (as well as the best case for inequality).

Nonetheless, with King & Spaulding's withdrawal, I believe the National Organization for [Heterosexual] Marriage's (NOM) running narrative about The Incredible Power of the Gay has been a bit of a PR victory.

But just a bit, especially after Team Anti-Equality's repugnant gay-baiting attempt to get Perry vacated on the basis of Judge Walker's same-sex relationship.

That being said, I question whether NOM staff understands the difference between winning a battle and winning the war. For, NOM staffers keep boasting on their blog about the many commentators who oppose DOMA yet who also believe it was wrong for King & Spaulding to drop their client.

It's as though they believe support for the principle of zealous legal representation translates as a substantive win on the marriage issue.

And, well, let me remind them of what these commentators that NOM has linked to are actually saying about DOMA:

Ruth Marcus, The Washington Post: The Defense of Marriage Act, which bars the federal government from accepting same-sex marriages recognized by state law, is repugnant and, I believe, unconstitutional. The Obama Justice Department did the brave and correct thing in deciding it could no longer defend the law.

Andrew Cohen, The Atlantic: As I have consistently written over the past nine months, there are plenty of legitimate legal reasons to think that the DOMA's dubious message of unequal rights for same-sex couples ultimately will fall at the Supreme Court.

Jonathon Capehart, The Washington Post: House Speaker John Boehner (R-Ohio) has more pressing things to do — debt, deficits and “Where are the jobs,” Mr. Speaker? — than prevent a gay couple from the joys of filing joint tax returns and availing themselves of the other rights and responsibilities that accrue to federal recognition.

Margaret Talbot, The New Yorker: DOMA is a discriminatory piece of legislation, made even more problematic by its disrespect for laws enacted by the states: it prevents the federal government from recognizing same-sex marriages that are legal in the states in which they occurred.

LA Times Editorial: DOMA is a regressive law.

The New York Times Editorial: We strongly oppose the federal statute known as the Defense of Marriage Act, which bans recognizing same-sex marriage. House Republicans should not have used taxpayer money to hire outside lawyers to defend it.

Repugnant. Dubious. Regressive.

It's suddenly becoming clear why "marriage defenders" seem to want to keep the substantive debate in the closet while they up the vilification of LGBT people.

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