Al-Qaeda, Yes; DOMA, No
The strange priorities of the Lawyer Left are on display.


Andrew C. McCarthy

The modern-day John Adams brigade down at King & Spalding has finally found a client too unpopular to merit representation: the American people. That is exactly the same conclusion drawn by Eric Holder’s Justice Department.

Like the DOJ, the Atlanta-based white-shoe law firm asks “How high?” when left-wing agitators tell it to jump. In this instance, the agitators were gay-rights activists. They were in a snit because K&S — in particular, K&S partner Paul Clement, the former Bush-administration solicitor general — agreed to represent the American people in litigation involving challenges to the Defense of Marriage Act (DOMA). DOMA denies federal recognition of same-sex marriage. It was reluctantly signed by President Clinton in the stretch run of his 1996 reelection campaign, huge congressional majorities having acted out of concern that leftist judges would impose gay marriage on a very unwilling public.

Defending DOMA against court challenges is supposed to be the Justice Department’s job. As Attorney General Holder has declared, DOJ has “a longstanding practice of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” But with Holder in charge, that claim is fraudulent.

Under Holder’s stewardship, duly enacted statutes are deemed infirm when the Left disapproves of them — despite powerful constitutional arguments to be made in their behalf. When Holder was Clinton’s deputy attorney general, DOJ refused to defend a congressional statute that had reversed the Miranda decision. There were well-grounded arguments in the statute’s favor — the Supreme Court had many times denied that its judicially manufactured Miranda rule had constitutional pedigree, and it is black-letter law that Congress may reverse judicial decisions not rooted in the Constitution. But no matter. For the Left, Miranda is a sacred cow, a cornerstone of its criminal-rights revolution of the 1960s and 1970s. To protect it, Holder’s minions abandoned the statute — taking the side of a convicted bank robber to do so.

That was preferable to Holder’s diabolical approach to DOMA. For a long time, DOJ pretended to defend DOMA but sabotaged cases by abandoning the arguments that best supported the statute. Politics put an end to that charade. The president is unpopular and needs his base energized if he is to have a chance at re-election. He could no longer afford to be seen by the Left as being on the wrong side of gay marriage — even as a sham. So Holder dutifully pulled the plug on DOMA. Ever incoherent, the attorney general also announced that the administration would continue enforcing the statute it claims is clearly unconstitutional.

DOMA was thus defenseless, even though it is a popular law enacted by the people’s representatives. The Republican-controlled House of Representatives tried to retain counsel to do the job DOJ refused to do. That’s no easy task: The Lawyer Left’s mission in life is to eradicate our principles under the guise of upholding “our values” (by which it means its own agenda), and it has no more use for the people’s attachment to traditional marriage than it does for the people themselves. Enter King & Spalding, at least briefly.

Paul Clement is a brilliant lawyer. Putting two and two together, gay-rights groups realized they would face one of the nation’s most polished appellate advocates, one who would effectively employ all the compelling DOMA arguments the Obama Justice Department had been burying in the sand. Predictably, they went postal on K&S, threatening a boycott of their clients. The firm folded like a cheap tent, abandoning the representation while muttering some gibberish about how the “vetting process” had failed.