Today Kerry takes on the recent controversy over the anti-gay Defense of Marriage Act, and the law firm, King & Spalding, that refused to defend it.
As you may recall, The Obama administration, after two years of defending DOMA in court, even though the President had repeatedly called the law "abhorrent," finally decided to stop defending it. Joe and I led the charge against the president's defense of DOMA, and were the first to report on the infamous June 2009 legal brief in which the Obama administration, literally borrowing an anti-gay brief written by the Bush Justice Department, invoked the state's regulation of incest and pedophilia in an effort to defend a state's right to also regulate gay marriage.
As you can imagine, that comparison, and much more in the venomous 50 page brief, did not go over well with a community that 70% of which voted for President Obama only months before.
After the administration chose to no longer defend the law - just as Bush, Clinton, Bush Sr. and Reagan had also chosen not to defend certain laws - by law it was up to the House of Representatives to decide if they wished to intervene in the case. Never one to pass up the opportunity to legislatively bash a minority, the Republican House gladly took up the case and hired a top Bush administration lawyer, to the tune of $500,000, to defend DOMA in court. The lawyer, Paul Clement, was working at a large law firm called King & Spalding.
To make a long story short, there was an uproar in the gay community, and among King & Spaldings own employees and clients, and the firm quickly petitioned the court to permit it to drop the case only days after accepting the House as a client. The gay community was overjoyed, but the Obama administration was not.
Attorney General Eric Holder, incredibly, publicly criticized the gay community and others for speaking out against Republican lawyer Clement and the firm. Holder said that by defending DOMA's discrimination and bigotry, Clement was portraying the "best" of the legal profession. Holder, who up until now has been reticent to say much of anything positive about gay civil rights (even when asked to help us defeat an anti-gay ballot initiative in Maine that took the right of marriage away from gay couples - Holder refused to weigh in with even a simple comment), compared gays - who, mind you, are the victims here - to conservative bigots who don't want Muslims detainees at Gitmo to get their constitutional right to counsel in their criminal tries (as if DOMA, a law, has a constitutional right to an attorney). The White House then publicly agreed with Holder, in defense of the arch-Republican Bush administration lawyer who was to make half a million, and then some, from defending bigotry in court.
Interestingly, both the White House and Holder were silent about John Boehner's blatant efforts to politicize the DOMA defense, and to use the defense as a means of pandering to the far-right hate groups that make up the base of the Republican party. As usual, the White House and DOJ showed no such reticence when the chance arose to take a slap at a key ally. President Incest & Pedophilia struck again. (Some have wondered whether this was part of yet another pollyanna White House effort to pander to Republicans in the naive hope that the GOP might return the pander in a future negotiation - as if this tactic of negotiating with himself hasn't failed the President miserably for two years now and counting.)
In her new piece, Kerry takes on the notion that it was the most "ethical" thing ever for the Republican attorney, and the firm, to defend bigotry. And she also takes on the notion that civil rights advocates should be bound by the legal profession's code of ethics. Here's a snippet - you can read the entire piece over at AMERICAblog Gay. It's worth the read.
Stone advances an important judicial ideal here, but it’s also an unavoidable American truth that, at any given moment, the politics and legalities of a controversial issue like DOMA are often working their way through each system simultaneously. In other words, the case isn’t playing out in a vacuum and, as much as the courts are supposed to be insulated from the atmospherics surrounding an issue, those elements inevitably impact the legal treatment those cases receive.
For that reason, I believe it would have been a mistake for advocates to forfeit the opportunity to make known their views about King & Spalding’s representation. Letting the moment pass without objection would have been a missed opportunity to send a political message, and advocates shouldn’t be expected to approach the legal system the way a lawyer would. We quite simply have different interests at stake – theirs is to preserve the sanctity of the legal system, and ours is to advance the cause of freedom for lesbian, gay, bisexual, and transgender Americans.
