Researcher Accuses Clement of Distorting Her Work

There are a couple of interesting developments in the legal challenge to the Defense of Marriage Act in which the House has hired Paul Clement to defend the constitutionality of the law. The first is that Clement apparently tried to cite lots of research about the dangers of gay parents in his filings, but without making the sources of that research available for depositions and cross-examination. AmericaBlog reports:

Last week, Boehner’s lawyers opposed Edie’s motion for summary judgment and filed a memo with their arguments. We posted it here. It was a memo filled with every anti-gay argument around. There were lots of citations from anti-gay literature and screeds. But, here’s the thing. Edie’s lawyers offered expert testimony from some of the most accomplished people in the country including Stanford Professor Gary Segura. Clement and his crew got to depose them. So, Edie’s expert witnesses have testified under oath by Boehner’s lawyers. But, Clement offered no experts. Instead, he tried to sneak in the testimony by citing a number of anti-gay documents in their memo on summary judgment. It’s the kind of stuff that David Boies called “junk science.” And, it’s hearsay.

Yesterday, Edie’s lawyers filed a motion to strike those documents (posted below.) In legal proceedings, lawyers from both sides are supposed to have access to witnesses. Clement tried to work around that. He also tried to pass off anti-gay screeds as expert writings.

This is a bit overstated. It isn’t unusual for attorneys to site scholarly literature in their court filings without actually having the authors of that literature testify in the case. The other side is, of course, free to cite contrary literature and make arguments in their reply briefs as to why those citations are valid or not. But this is really just a prelude to the real problem, which is that one of the researchers cited by the defense has filed an affidavit saying that they distorted her work. I’ll put the affidavit below.

Paul Clement is an absolutely brilliant appellate lawyer, considered one of the best there is. But this kind of thing will not endear him to the judge in this case.

Affadavit of Prof. Lisa Diamond(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();

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  • Hercules Grytpype-Thynne

    It isn’t unusual for attorneys to site scholarly literature

    You mean “cite”.

  • Michael Heath

    What I find richly ironic about the entire Prop. 8 legal case is that not even the bigots’ best and brightest can put forward an honest, cogent, coherent argument defending their bigotry. I think the bigots’ own lawyers make the best argument against their position.

  • ramel

    Paul Clement is an absolutely brilliant appellate lawyer, considered one of the best there is. But this kind of thing will not endear him to the judge in this case.

    Well I’ve said it before, the best way to defend the indefensible, is badly.

  • Larry

    When you make shit up out of thin air, misrepresent actual studies by citing sentences out of context, and other such things, it is possible to prove just about anything: day is night, 1+1=4.7, Teh Gayz are evil, etc..

    When its done by the whack-a-loon religious right, it is simply called Monday. When a lawyer presents it in a court of law as fact when he knows it is utter bullshit, it is a whole ‘nother thing.

  • Chiroptera

    Michael Heath at 10:09:

    I was struck by that very point, Michael. When I read Judge Walker’s decision, I was amazed at how incompetent the proponents’ were. And I assumed that it was because there just isn’t possible to make a legal case against same-sex marriage. Any attempts to do so will only make the legal team look like doofuses.

  • abb3w

    It seems a tiny spark of culture clash. Lawyers consider it normal practice to cherry pick out whatever can be spun to represent the interests of their client, under the presumption the adversarial process will yield the truth; scientists consider accurate presentation in context an ethical imperative whether arguing in support or against.

    Of course, some of it looks like the lawyers didn’t understand the technical terminology distinction between a change in identification and a change in orientation.