For nearly two years, House Republicans paid conservative superlawyer Paul Clement $520 an hour to defend the anti-gay Defense of Marriage Act in federal court — and then sent the bill to the American taxpayer. In total Clement has now cost the American people up to $3 million for his efforts on behalf of this unconstitutional law. Last night, we taxpayers finally found out what we were paying for — a 60 page brief explaining why the justices should leave marriage discrimination untouched.
As decades of precedent establish that the Constitution should provide a shield to minority groups when prejudice leaves them without adequate recourse to the political process, Clement includes a section discussing just how very powerful and completely capable of vindicating their rights at the ballot box gay men and lesbians have become. Same-sex marriage is supported by President Obama and Vice President Biden! Less than half of Congress filed a brief agreeing with them! A magazine once wrote an article about how influential the Human Rights Campaign is! For the first time in history, an entire 1 percent of the Senate is openly gay!
After touting the immense political clout of a group that, after 226 years of American democracy, finally managed to elect a single person to the upper house of Congress, Clement then drops this line:
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. . . . Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. . . . [G]iven that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.
One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”
Because, of course, if the fact that gay people have won a few political battles lately were reason to deny them the equal protection of the laws, then the same would also be true about African-Americans and women. Lyndon Johnson signed the Voting Rights Act two years before Virginia lost its marriage discrimination case in the Supreme Court. The Civil Rights Act of 1964 promised equal treatment to women in the workplace — a promise still denied to gay men and lesbians — seven years before the justices first recognized that official discrimination against women violates the Constitution. Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise.
Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.