The desire to achieve victory in any field of endeavor can become so intense that it deforms the character of the participants. That tendency has been on display in the past two weeks as a result of the intimidation offensive the Human Rights Campaign has waged against the law firm of King and Spalding and its partner, former Solicitor General Paul Clement, over his agreement to represent the House of Representatives in federal cases involving the Defense of Marriage Act (DOMA). Clement has acted with honor and consistency by putting legal ethics before any other consideration, including what can easily be inferred as his preference to remain at one of the nation’s venerable law firms.
Clement’s decision to resign rather than participate in King and Spalding’s abandonment of its client has drawn praise from across the political and legal spectrum, including from another former Solicitor General, Ted Olson. Olson is representing the plaintiffs suing to overturn Proposition 8, the California constitutional amendment that preserved marriage in the Golden State as the union of a man and a woman. The Wall Street Journal, The New York Times and leading columnists have joined in the chorus as well.
Painting this marriage litigation in partisan terms is wrong in the first place. News stories from publications across the political spectrum have portrayed as partisan the House’s intervention to defend DOMA after the Obama Administration announced on February 23 that it now regarded the statute as a violation of the equal protection clause of the Constitution. True, the vote of the Bipartisan Leadership Advisory Group instructing House counsel to engage in the litigation was along party lines. But support for traditional marriage and for DOMA is by no means partisan. Majorities of members of both parties supported DOMA by wide margins when it was adopted in 1996. The dozens of state DOMAs the federal version mirrors, whose fate may also be at stake, have passed Republican and Democratic—and nonpartisan, in the case of Nebraska—legislatures alike.
Last year a Democratic-controlled Congress and a President who had repeatedly stated his support for the repeal of DOMA had an open field to schedule votes on repealing DOMA. They did not do so. The only reasonable explanation is that the Democratic House and Senate majorities in 2010 were not confident that they had enough support in their own caucus to repeal the law. Representative Barney Frank (D–MA) acknowledged as much.
The 112th Congress includes a number of Democrats who undoubtedly faithfully represent the views of their constituents and support retaining the 1996 law. They and the people they serve—not to mention the millions of citizens (Republican, Democrat, and independent) in the 31 states who have voted to protect marriage in their state constitutions—are represented in federal court today by the House of Representatives and, therefore, by Paul Clement. The House did not choose this role, but it accepted this duty.
Understanding this reality only underscores the offensiveness of the kind of bully politics that were on display last week in Washington, which even The Washington Post acknowledged: “[The Human Rights Campaign] sullies itself and its cause by resorting to bullying tactics.”
The nature of marriage is a crucial, even fateful, decision for the future of civil society, but so is our ability to recognize and cherish the value of the rule of law and reasoned debate. Viewing issues as important as these through a polarized and partisan prism is a tragic error we would do well not to repeat. Marriage as the union of a man and a woman is a pre-political institution, not a partisan artifact.