The surprising political power of the same-sex marriage movement hit two legal setbacks this week on the West and East Coasts.
In 2008 California voted by 6.3 million to 5.8 million in favor of Proposition 8 to approve a state constitutional amendment limiting marriage to the union of a man and a woman. Last year Federal Judge Vaughn Walker declared Prop 8 unconstitutional.
During the trial in June, I asked, "How dare" he even hear the case? "Walker is an open homosexual. Had he been an honorable judge, he would have recused himself," I argued.
After retiring in February, Walker disclosed that he had been in a same-sex relationship for 10 years! Federal law requires a judge to disqualify himself whenever the judge knows that he has any personal interest that could be substantially affected by the outcome of the case.
"This changes everything," asserted Ron Prentice, chairman of ProtectMarriage.com which fought to uphold Prop 8. "Based on his decision to rule Prop 8 unconstitutional, he can then marry his same-sex partner."
Therefore, ProtectMarriage asked the U.S. District Court to throw out Judge Vaughn's decision invalidating Prop 8 – a major setback for same-sex marriage.
Similarly, gay marriage advocates seemed to have won two major battles in Washington DC. First, they persuaded the Obama Administration to cease defending the Defense of Marriage Act (DOMA) that was passed overwhelming by Congress and signed into law by President Clinton in 1996. The vote was 342-67 in the House and 85 to 14 in the Senate.
DOMA declared that marriage in federal law "means only a legal union between one man and one woman as husband and wife." So if a "spouse" in a same-sex union in Massachusetts filed for Survivor's Benefits for a deceased partner, they could not collect. Nor is any state obliged to honor gay marriages recognized in other states.
However, Attorney General Eric Holder announced Justice would not defend the law because the President thought it was unconstitutional. This is a profound error. Obama took an oath to "uphold" the laws of Congress.
Fortunately, the House of Representatives decided to defend DOMA, and hired Paul Clement, a former U.S. Solicitor General, of a prominent Atlanta law firm, King Spaulding, However, gay activists at the Human Rights Campaign brought so much pressure to bear on the firm through such clients as Coca-Cola, that King Spaulding withdrew from the case days later.
To his great credit, Clement promptly resigned from the firm and moved to another so that he might continue the fight for DOMA. In a resignation letter, Clement asserted, "I resign out of the firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular decisions is what lawyers do.
"Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism."
Clement's decision is courageous. As Solicitor General he argued more than 50 cases before the U.S. Supreme Court. His departure is a great loss for King Spaulding.
And guess who had high praise for Clement's decision to stick with the case?
Attorney General Holder told reporters, "Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation - representing Congress in connection with DOMA, I think he is doing that which lawyers do when we are at our best. That criticism (of him) I think was very misplaced.
Family Research Council President Tony Perkins praised the Attorney General's opposition to the "smear and silence campaign against Paul Clement (which) has gone too far ... For the last several years, homosexual activists have managed to frighten most of corporate America into tiptoeing around the homosexual community."
However, Perkins properly noted: "It is President Obama and the Attorney General who created these circumstances. Attorney General Holder abandoned their client, the U.S. House of Representatives. Had President Obama fulfilled his constitutional duties to enforce and defend the law, outside counsel would not have been needed."
The gay legal momentum hit important snags this week on the East and West Coast. And gay marriage was not approved in Maryland and Rhode Island last month, as expected.
There is hope for preserving traditional marriage.
Mike McManus, the president of Marriage Savers and a syndicated columnist, can be reached at mike@marriagesavers.org.
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