Two years ago, House Republicans hired Paul Clement, the former Solicitor General who has since built a practice out of trying to convince judges to repeal laws supported by Democrats and preserve laws supported by Republicans, to defend the unconstitutional Defense of Marriage Act. Clement’s team then charged the taxpayer $520 an hour to unsuccessfully argue that anti-gay discrimination should continue to be enshrined in federal law. According to a report by Bloomberg Government, which is behind a paywall, the total cost of Clement’s failed effort to preserve discrimination was $2.3 million in federal taxpayer money.
Clement is unquestionably one of the nation’s most skilled litigators, so the fact that he had to rely on some very doubtful legal claims in order to produce a brief defending the law is an indication of how indefensible DOMA is on constitutional grounds. Among other things, Clement argued that gay people should be denied equal rights because they are too powerful for the Court to afford such rights to them. In his words, “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.”
In the DOMA case, the Supreme Court did not buy what Clement was selling, and for good reason. If political victories and the support of politicians is sufficient reason to cut off people’s constitutional rights, than the Civil Rights Era cases protecting African-Americans were wrongly decided. Dr. Martin Luther King, Jr. and other top civil rights leaders frequently met with elected officials, including the President of the United States, and their actions rallied lawmakers to enact landmark legislation such as the Civil Right Act’s ban on discrimination and the Voting Rights Act’s ban on racialized voter suppression. The justices of that era recognized that political victories do not automatically cancel out the need for legal rights, a lesson the five conservative justices proved they have not learned when they struck a key prong of the Voting Rights Act on Tuesday.