Bench Memos

LA Times vs. Human Rights Campaign

It’s not often that I have occasion to say something good about the Los Angeles Times editorial page, so let me seize the occasion:

Having helped pressure the Obama administration to sabotage its defense of DOMA (a point I discuss briefly in Part IV, point 2 of my recent testimony before the House Constitution subcommittee), the Human Rights Campaign is now trying to stigmatize and punish the law firm of King & Spalding for the fact that the House of Representatives has retained its superstar appellate lawyer, former Solicitor General Paul Clement, to defend DOMA. It would seem that the one thing that the Human Rights Campaign doesn’t want is a proper judicial battle over DOMA.

As it makes clear in a house editorial, the LA Times opposes DOMA. But, to its credit, it also condemns the Human Rights Campaign’s attack on King & Spalding:

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.…

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.

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