NCLR responds to LA Times editorial on DOMA and Paul Clement

April 23, 2011 at 6:26 am 52 comments

By Adam Bink

I wrote about the wrong-headed editorial here. Today, Maya Rupert at the National Center for Lesbian Rights responds and the LA Times runs her piece:

Opinion L.A.
Observations and provocations
from The Times’ Opinion staff
Blowback: Nothing defensible about DOMA

Maya Rupert responds to our editorial, “Defense of Marriage Act: Attack the law, not the lawyer.” She is the federal policy director for the National Center for Lesbian Rights. Click here for more information on Blowback, our forum for readers to respond, at length, to Times articles.

DOMA In its April 21 editorial, The Times argues in favor of Paul Clement’s decision to defend Section 3 of the Defense of Marriage Act, known as DOMA, which discriminates against legally married same-sex couples by prohibiting the federal government from recognizing their marriages for any purpose. In the editorial, The Times takes the curious step of extending the familiar maxim that “every person deserves a lawyer” to the more expansive “every position deserves a lawyer.” The first is a fundamental right upon which we base our criminal justice system. The other is a fiction that mistakenly seeks to insulate a shortsighted law firm from criticism for its decision to defend a discriminatory law.

As the editorial correctly points out, there is an honorable tradition of lawyers defending unpopular and controversial clients. Civil liberties organizations, for example, have repeatedly, and admirably, defended plaintiffs whose views they abhor (such as members of the Ku Klux Klan), in order to protect cherished principles like freedom of speech and assembly. In this case, there is no greater good, no cherished larger issue at stake; the only issue contested is discrimination. There is no venerable tradition of lawyers defending laws that single out certain groups for discrimination.

DOMA forces the federal government to discriminate against same-sex married couples and to treat their families as unworthy of protection or respect. A law that serves only to designate some families as second-class citizens has no principled defense. Defending DOMA simply prolongs the harm to same-sex couples and their children. There is no countervailing good.

A private lawyer is under no obligation — from a state bar, pursuant to ethical rules, or out of respect for the adversarial process — to defend an indefensible law. Those who choose to defend such a law do so at the peril of their reputations as fair-minded and just advocates. Clement has made a decision not just to stand on the wrong side of history but to lead the charge on that side and, sadly, to bring his law firm, King & Spalding, along with him. He is free to do so, but we should not pretend that decision represents a magnanimous fidelity to the adversarial process or to justice.

Throughout history, discriminatory laws have weakened our country’s commitment to equality and fairness. Those laws have generally remained in effect until judges, lawyers and the public took a stand against them. And those powerful statements — that people will no longer use their power or profession to foster discrimination and harm — forced those viewpoints into the far fringes where they belong. There are moments in history where people are called upon to make such statements. This is one of those moments. King & Spalding had an opportunity to use its considerable power to further justice, not perpetuate discrimination. In declining to do so, it acted in a way that is indefensible.

–Maya Rupert

Well put.

Entry filed under: DOMA trials.

Yet again, NOM fails to claim an employee. And in a post about truth, no less Making cultural norms catch up with laws (or, why straight allies matter so much)

52 Comments Add your own

  • 1. Straight for Equality  |  April 23, 2011 at 6:46 am

  • 2. Kathleen  |  April 23, 2011 at 6:47 am


    • 3. Ann S.  |  April 23, 2011 at 11:21 am


  • 4. Sagesse  |  April 23, 2011 at 6:57 am


    • 5. LCH  |  April 23, 2011 at 7:52 am

      Spot on!


      • 6. Ronnie  |  April 23, 2011 at 8:30 am

        = ………….<3…Ronnie

        • 7. JonT  |  April 23, 2011 at 10:28 am

  • 8. Straight for Equality  |  April 23, 2011 at 7:01 am

    A strong, well expressed reply. Cudos to Maya Rupert.

  • 9. DazedWheels  |  April 23, 2011 at 7:18 am


  • 10. Alan E  |  April 23, 2011 at 7:51 am

    No mention if the fact that the lawyer group actively extends a welcoming hand to LGBT employees

    • 11. Adam G  |  April 23, 2011 at 1:14 pm

      That doesn’t cancel out the evil they’re doing by defending this indefensible piece of crap.

  • 12. Don in Texas  |  April 23, 2011 at 8:01 am

    An excellent, thoughtful and forceful response. Ms.Rupert deserves great credit for her comments.

    • 13. Ed Cortes  |  April 23, 2011 at 8:24 am

      An excellent response. I cna’t wait for all these legal battles to begin so the public can see how dim-witted the “arguments” are, and (I hope) vote some of the “defenders” out of office!

      • 14. Chris in Lathrop  |  April 23, 2011 at 9:13 am

        That is, if SCOTUS lets us watch.

      • 15. Michael Ejercito  |  April 23, 2011 at 9:53 am

        An excellent response. I cna’t wait for all these legal battles to begin so the public can see how dim-witted the “arguments” are, and (I hope) vote some of the “defenders” out of office!

        You can find out how “dim-witted” those arguments are by reading the briefs defending DOMA. (Courtesy of DOMA Watch)

        In Re Kandu

        Wilson v. Ake

        Smelt v. Orange County

        Smelt v. United States

        • 16. Ronnie  |  April 23, 2011 at 9:58 am

          Actually no you can’t you dim-wit…& you have been proven wrong by people who actually studied law…every time you post that religious reich propagated bullshite….Go away…Naz…I mean troll….. 8 / ….Ronnie

        • 17. AB  |  April 23, 2011 at 11:41 am

          1. I don’t even understand what you are trying to say in your post. You only post the briefs in these cases that support DOMA. I could just as easily post the opposite briefs and say “Ha, see you’re wrong.” Your post makes no real arguments.
          2. These “dim-witted arguments” that are being referred to are the claims by the L.A. Times that it is some moral wrong for a group to merely observe when a law firm calls itself gay friendly then takes the position of defending laws that hurt gays and lesbians. Neither your post, nor the legal briefs that you include within it, speak to the L.A. Times piece or the arguments that the Times makes to support their claims.
          So what ARE you trying to say here?

  • 18. Sagesse  |  April 23, 2011 at 9:49 am

    Tennessee’s “don’t say gay” bill advances

    • 19. Cat  |  April 23, 2011 at 10:58 am

      Very scary stuff…

      They just can’t see that being gay is part of the natural spectrum. They fear anything that makes gays into normal human beings with normal human desires, such a building a loving stable home, because that conflicts with their own idea of how bad, nasty and different being gay is. Rather than spending a small fraction of their energy to learn about the person of a gay person, they spend all their energy to fear the gayness of a gay person. Very scary indeed.

  • 20. Sagesse  |  April 23, 2011 at 11:04 am

    And they would tell all LGBT students under high school age in Tennessee that they don’t exist, that they have nowhere to go for support. Scary, indeed.

    • 21. Sagesse  |  April 23, 2011 at 11:05 am

      That was supposed to be a reply to Cat.

  • 22. AB  |  April 23, 2011 at 11:34 am

    This is well put, and entirely accurate, but I don’t understand why we are dignifying this editorial with any response at all. It is poorly written (first year journalism students wouldn’t claim this horribly written piece), it is riddled with factual and logical inaccuracies, and it is not being very widely cited by those on either side of the marriage debate. Responding to it just draws attention to something that is likely to be ignored if we just don’t dignify it.
    I, myself, wrote a letter to the Times, but am reluctant to send it because it is an exercise in futility for people who are willing to publish an editorial that is this misinformed to begin with.

  • 23. Fater Bill  |  April 23, 2011 at 2:04 pm

    1. I can’t imagine that Clement would take this case without the approval of the Firm’s management committee and CEO.
    2. As Kathleen asked, who wanted the gag order of Sec. 4 of the contract in – the law firm or the Republican Speaker of the House?
    3. Will employees of the law firm sue to get the gag order held unenforceable?
    4. Could this case be a way to get the gay marriage issue quickly before the US Supreme Court without the messy facts of the Prop 8 case and thus create a “new reality” precedent as per Bush v. Gore?

    • 24. Jon  |  April 23, 2011 at 5:22 pm

      It could be a chance for the firm to make cash. A losing position that the client is willing to pay and pay to fight and delay, is steady money. If money is your sole object, you should take these cases.

      Of course don’t come to us later and say you had any other object.

  • 25. Sagesse  |  April 23, 2011 at 5:25 pm

    Renewed fight for gay marriage in NY hits suburbs

  • 26. Sagesse  |  April 23, 2011 at 5:27 pm

    Equal rights come in strange forms.

    Conjugal visits allowed for inmates and partners in same-sex marriages, civil unions

    Read more:

  • 27. Sagesse  |  April 23, 2011 at 5:43 pm

    Zach Wahls continues to work for equality.

    MARRIAGE MATTER: A familiar face in the fight for marriage equality spoke at a conference at Iowa State Sunday,0,7935631.story

  • 28. Sagesse  |  April 23, 2011 at 8:07 pm

    McDonalds Attack Victim Speaks Out

  • 29. Rhie  |  April 23, 2011 at 11:37 pm


  • 30. Sagesse  |  April 24, 2011 at 7:39 am

    Gotta love those pesky facts, and the people at Equality Matters who speak them.

    Nothing But The Truth: Anti-Gay Misinformation At The House’s “Defending Marriage” Hearing

  • 31. Sagesse  |  April 24, 2011 at 8:20 am

    Details of how Lisa Miller kidnapped her daughter, from the FBI complaint.

    Liberty Counsel, Liberty University Extensively Entangled In Kidnapping Case

    • 32. Ann S.  |  April 24, 2011 at 5:37 pm

      Thank you so much, Sagesse, for this and for the many other fascinating articles you post.

  • 33. Menergy  |  April 25, 2011 at 7:17 am

    Over on Joe.My.God blogspot…

    More on Maggie’s being pissed off at HRC for the audacity to criticize and attack the law firm — seems’ she thinks a law = a person’s right to trial under the Constitution/Bill of Rights: (well the Supreme Court DID rule that corporations are people when it comes to free speech/political campaign contributions/etc……):

    “Is everyone entitled to a lawyer? Not in HRC’s eyes. HRC is openly attempting to hurt an entire law firm, because one of its lawyers took on a client HRC does not like: the House’s defense of the Defense of Marriage Act. This kind of thing has been done behind the scenes many times–the use of class power behind the scenes to punish those who disagree with HRC on marriage. (I just spoke to the wife of a litigator in San Francisco who lost his job–was denied a partnership–because he donated to Prop 8.) But this is even worse, and very public: the attempt to punish an entire business enterprise because a lawyer defends what is in HRC’s eyes an unpopular client. Will the legal culture permit HRC to tell it who can hire a lawyer? We’ll see.” – Maggie Gallagher, writing for NOM’s blog.

    • 34. Menergy  |  April 25, 2011 at 7:19 am

      And of course, no recognition by her of the inconsitency/hypocrisy of the law firm which touts its opennes to LGBT employees, but a lead attorney takes on the case for the House to defend an LGBT-discriminatory law and also agrees to a gag order on the firm employees from advocating against DOMA……Typical!

    • 35. Ronnie  |  April 25, 2011 at 8:06 am

      “(I just spoke to the wife of a litigator in San Francisco who lost his job–was denied a partnership–because he donated to Prop 8.)”

      Oh…boo-frikin-hoo…..LGBT people can & have been fired & denied jobs & promotions simply for being LGBT in states all across this country……Oh wait…that’s right….anti-gay people are allowed to do & say whatever they want but when the gesture is reciprocated then it’s wrong……pfffft….(rolls eyes) …… 8 / …Ronnie

      • 36. JonT  |  April 25, 2011 at 8:10 am

        Exactly… I’m sure we won’t actually hear any details about this ‘wife of a litigator’ either.

        Just more BS from the NOM Klan.

        • 37. Ann S.  |  April 25, 2011 at 9:58 am

          Exactly — the story isn’t credible without names and the name of the firm.

          • 38. AnonyGrl  |  April 25, 2011 at 10:11 am

            Not to mention there is a HUGE difference between “lost his job” and “was denied partnership”.

            And if there is PROOF that he did lose his job over a political contribution (and that the firm does not have in place a policy about such contributions, as some do) then let us hear it. I would certainly object to such treatment, if there is anything to it…

          • 39. Ann S.  |  April 25, 2011 at 10:23 am

            Some firms have an “up or out” policy, but partnership denials aren’t usually made on the basis of political donations.

      • 40. Ronnie  |  April 25, 2011 at 8:49 am

        Another point of Maggie Gallagher’s self-righteous hypocrisy…..

        “the attempt to punish an entire business enterprise because a lawyer defends what is in HRC’s eyes an unpopular client.”

        But…But…anti-gay people, including NOM, protest & boycott against Home Depot, Disney, Google, Pepsi, Mc Donald’s (after they released the pro-gay commercial in France..i think it was) for supporting Equality & more recently J. Crew….you, NOM, did attack J.Crew & the designer who appeared with her son who had pink nail polish on his toes. Then there’s the verbal protest also in print by anti-gay people & groups, including NOM, against TV shows & movies that have LGBT characters & story lines.

        But I get it…..The Fascist NOM & their anti-gay sheeple are allowed to do & say whatever they want….but when Equality supporters do the same then it is wrong….pffft…. (rolls eyes) …. 8 / ….Ronnie

  • 41. Menergy  |  April 25, 2011 at 7:53 am

    Catch this !!!!!
    (copied text from Tweet: @aterkel

    BREAKING; Law firm @kslaw says it’s backing out of DOMA case. Determine “process used for vetting this engagement was inadequate.”

    No confirmation is yet available, but the above HuffPo tweet is blowing up on Twitter right now. If true, stand by for NOM to get the vapors.

    UPDATE: Politico confirms the story. King & Spalding has issued the below statement.
    Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal. In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

    Stand by for the screaming outrage! I can’t wait!

    • 42. Straight for Equality  |  April 25, 2011 at 8:01 am

      Good for King and Spalding! I wonder if the bad publicity and notes from LGBT community and allies were a factor.

      • 43. Michael Ejercito  |  April 25, 2011 at 10:48 am

        Good for King and Spalding! I wonder if the bad publicity and notes from LGBT community and allies were a factor.


        They caved in to a bunch of shit stabbers.

        • 44. Ronnie  |  April 25, 2011 at 10:52 am

          *cough* HOMOPHOBIC epithet *cough*…… > / ….Ronnie

        • 45. JonT  |  April 25, 2011 at 10:57 am

          u mad? hahaha

          PS: Your bigotry is showing. tsk tsk tsk.

          • 46. Michael Ejercito  |  April 25, 2011 at 11:11 am

            The fact is that a law firm caved in to a bunch of shit stabbers, who have as much clout as the fundamentalist LDS cults.

          • 47. AnonyGrl  |  April 25, 2011 at 11:13 am

            MIchael, if you don’t have anything to actually add to this conversation, we would all appreciate your NOT coming in just to spout unpleasant slurs.

            Thank you.

          • 48. Ronnie  |  April 25, 2011 at 11:17 am

            *cough* repeating HOMOPHOBIC epithet *cough*…… > / ….Ronnie

            P.S. Is anybody around here that homophobic epithet that NOM member is calling……No?…..ok moving on.

        • 49. Sagesse  |  April 25, 2011 at 1:33 pm

          Adam, some major moderation is in order here. This comment is beyond unacceptable, and in my humble opinion, you may skip the warning.

    • 50. Kathleen  |  April 25, 2011 at 8:03 am

      HUGE!!! Can’t wait to hear all the back story on this!!!

    • 51. JonT  |  April 25, 2011 at 8:07 am

      Ahh, what a nice way to start the week :)

    • 52. Jon  |  April 25, 2011 at 9:56 am

      Looks like the firm had a choice of how many attorneys it wanted to lose.

      Which means some folks were putting it on the line.


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