Clement: LGBT People Too Powerful to Need Protection

The Supreme Court will soon hear an appeal in U.S. v Windsor, the 2nd Circuit case that struck down part of the Defense of Marriage Act. The act is being defended by the Bipartisan Legal Advisory Group because the Obama administration chose not to defend the law in court. In their latest brief, BLAG argues that gay people are too politically powerful to need protection:

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.

This is all part of the argument over whether gay people should be declared a “suspect class” — i.e. one that historically has been discriminated against and lacks the political clout to prevent such discrimination — and therefore whether the court should apply a heightened standard of review when considering the constitutionality of DOMA. Ian Millhiser responds pithily:

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.”

Clement is an absolutely brilliant attorney, probably the finest appellate advocate of his generation. But what he is arguing for here is rather disturbing.

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  • Michael Heath

    Ed concludes:

    But what [Paul Clement] is arguing for here is rather disturbing.

    Well just like we saw no compelling arguments to be had in the CA Prop. 8 appellate case, such a weak argument as this in Clement’s brief suggests Mr. Clement doesn’t have much to work in this case.

    I have no reason to believe this argument was included to gin up the conservative base, primarily because I doubt many follow briefs even in cases they care about. However this argument does nicely complement those anti-gay advocates who dishonestly argue, i.e. – lie, that GBLTs already have equal rights and instead are seeking so-called special rights.

  • Brilliant lawyer is a bigot for a paycheck, not a surprise.

    “Clement: LGBT People Too Powerful to Need Protection”

    John Edwards might want to mention that to Matthew Shepard or any of the other murder victims of gutless homophobes the next time he visits the “other side”.

  • doublereed

    Gosh, is that really the argument they’re going to use? Imagine if the laws banned Jews from marrying…

    And I love that the organization’s name is BLAG.

  • I have to wonder if Clement is actually bigoted against LBGT’s or if he is just “doing his job” as appointed to do, like many defense lawyers pretty much have to do even if they think their client is guilty.

    I just don’t know the guys history at all, and maybe it’s me just hoping that there aren’t really good lawyers who can let the cognitive dissonance affect them so strongly.

  • Michael Heath

    democommie writes:

    Brilliant lawyer is a bigot for a paycheck, not a surprise.

    Our system of justice requires competent legal counsel for all. So I don’t have problem with Mr. Clement taking this case nor do I see the argument Ed quotes here being bigoted; disingenuous yes. The side he defends are certainly bigots, but they too have a protected right to credible legal counsel which is what they’re getting here.

  • slc1

    Re Michael Heath @ #5

    Our system of justice requires competent legal counsel for all.

    That is absolutely true, however, an attorney is in no way, shape, form, or regard obligated to accept any old case that comes through the door of his office.

    I always remember a comment by famed defense attorney Louis Nizer about the time he was approached by members of an antisemitic group to defend them in a court action. He blithely told them that he would accept the assignment on the condition that he only be paid if he lost the case.

  • Christoph Burschka

    “The idea that $minority deserves human rights is already a popular opinion, so why do these rights need to be codified in law?”

    “Most people already think crimes are bad. Why do we need laws?”

  • gshelley

    Our system of justice requires competent legal counsel for all

    Is this only for defence counsel, or does it apply in all circumstances? If someone decides to take civil action against another person, are they guaranteed that someone must take the case?

  • Lbg

  • baal

    Michael’s right. Everyone should get a decent attorney, criminal or civil cases and as plaintiff or defendant. This includes unpopular people like gays, molesters, politicians, big corps and more. The problem is that all too often it’s the poor and otherwise discriminated against who can’t afford the top flight attorneys so you get a hge disparity in the court room.

    The argument, “LGBT big power doesn’t need protection” is off point even if the LGBT community were the #1 power in the county. DOMA says you can’t have federal recognition of marriages where the couple have the same sex. It’s a flat denial of right and even the powerful are entitled to their rights.

    I get that this is really about setting the standard of review and attorneys should be pushing on that point but I’m of the opinion that the SOR shouldn’t be the deciding factor in this case (by each of the3 standards, equality should win).

  • Our system of justice requires competent legal counsel for all.

    While that’s a nice ideal, the reality is that our system is that everyone is only entitled to the level of competence they can afford.

  • hunter

    That an attorney of Clement’s caliber could even advance an argument like this indicates to me that he has no case, he knows it, and he’s just throwing things at the wall hoping something will stick.

  • jamessweet

    The same argument was made in the Prop 8 trial. I actually find it an interesting approach. From a common sense standpoint, of course it is prime facie a ridiculous argument. But actually articulating a refutation is somewhat trickier than it would seem. (Note that Millhiser’s response is a reductio ad absurdum, rather than a direct refutation — because direct refutations of this line of argument are difficult!) It is true, I think, that LGBT people have political power which is disproportionate to their social power. Before jumping down my throat, read that sentence two times… Basically, I’m saying that LGBT people are not quite as shafted politically as they are socially. It makes for some interesting perspectives on the definition of “suspect class”.

    Don’t misunderstand me: I think it is patently obvious that LGBT is a classic example of what is intended by a suspect class. It is a group which is highly in danger of having laws passed which directly target them for negative and unfair treatment. Could there be a more textbook example? Nevertheless, because of the way suspect class has been defined historically, I think this is an interesting argument and a relatively sound legal strategy. Certainly, it is “better” than a lot of the other arguments the bad guys make in these cases! (Not “better” in terms of being more right, but “better” in terms of being harder to directly refute and more likely to succeed in open court)

  • dingojack

    So the argument is ‘LGBT: too big to fail‘, right Mr Clement? …. Mr Clement?

    🙂 Dingo


    Counter Apologist – “…. if he [Clement] is just “doing his job” as appointed to do, like many defense lawyers pretty much have to do even if they think their client is guilty”.

    IANAL – but it’s my understanding if the counsel is made aware that his or her client actually committed a crime (ie ‘that they are guilty’) then as an officer of the court they are obliged to report it, they can’t have that specific knowledge and take the case.

    They may think their client is guilty, but never know their client is guilty..

  • slc1

    but it’s my understanding if the counsel is made aware that his or her client actually committed a crime (ie ‘that they are guilty’) then as an officer of the court they are obliged to report it, they can’t have that specific knowledge and take the case. They may think their client is guilty, but never know their client is guilty..

    I don’t know what the situation is in Oz but this is not true in the US. If a lawyer’s client confesses to the crime to him, the only thing that a lawyer is ethically obligated to do is not to put his client on the stand to deny the charges or to put on a defense that purports to claim innocence of the client. In fact, the lawyer is expressly prohibited from reporting his clients confession to the authorities by the lawyer/client privilege. However, it the client tells the lawyer that he is going to commit a crime in the future, the lawyer/client privilege is inoperative and the latter is required to report his client’s statement to the authorities.

    As a matter of fact, even if a client confesses the crime to his/her attorney, the latter can ethically put the state’s evidence to the test by cross examining the state’s witnesses. He just can’t put on a defense case.

  • I believe that Mr. Michael Heath’s reply is principled and nuanced. I believe Clement’s action is neither.

    Clement could just say, “No” and let those fuckwads at TMLC or Liberty Counsel deal with it. IF he’s handling the case pro bono or IF he is as vigorous in defending odious pieces of shit and unfairly fucked poor people, also pro bono as he is in this case, my criticism is mitigated, not withdrawn.

  • Just after I typed the last comment I heard an ad (I think that it’s at least the third time this morning) for Syracuse Catholic Schools. “They WORK” is the money line. I suppose that’s true if continued endarklement is the object of education.

  • drr1

    This actually is a pretty standard argument in equal protection cases where suspect (race, ethnicity, national origin, and citizenship) and quasi-suspect (gender, illegitimacy) classifications are at issue. If you’re interested in jurisprudential pedigree, we trace the question of political powerlessness (in the contemporary era) to Carolene Products fn 4. There, the Court said that it would more closely scrutinize laws that interfere with the ability of “discrete and insular” minorities to protect their interests via the political process. So, in any case where classification is in play, and the claim is that a new protected class should be recognized, the parties will argue over the relative political power (or powerlessness) of the group in question.

    In Windsor, the issue is whether homosexuals should be recognized as a quasi-suspect class, one that receives not strict scrutiny, but intermediate scrutiny. The analogy to racial classifications is certainly appropriate, in some respects, and especially since so many of the arguments offered to support racial discrimination are made in support of LGBT discrimination, too. But in some ways, the more apt analogy is to gender-based classifications and intermediate scrutiny. At the time the Court started to take the issue up (early 1970s), women were not an insular minority, and an argument could be made that they were not politically powerless, either. What was far less clear, though, was how effectively women’s interests were being represented in the political process. And I’m old enough to recall that at that time, gender-based discrimination was still socially acceptable. Popular television shows of the day perpetuated gender-based stereotypes; professional women were the exception, not the rule; and of course, sexual equality was still a rather taboo subject.

    These are the questions the Court must be prepared to tackle in the DOMA and Prop 8 cases. No, homosexuals are not politically powerless – though the degree of political power and influence they enjoy is nowhere near what Clement and his clients argue it to be. We’re just one or two election cycles removed from the time when Karl Rove and his pals worked hard to get anti-same-sex-marriage initiatives on state ballots in order to drive conservative voters to the polls. The very success of Prop 8 in California is testimony to the kind of political powerlessness gays and lesbians face. Just as with gender-based discrimination in the ’60s and ’70s, discrimination based on sexual orientation is still accepted – at least in significant segments of our society. So, just as the Court decided discrimination based on gender should be subjected to elevated scrutiny, so it is with discrimination based on sexual orientation. This kind of discrimination is still real and pervasive, and the political process simply cannot be trusted to do right by our LGBT citizens. I see no reason to think, by the way, that the need for this bit of elevated protection will diminish in the foreseeable future. Prejudice dies hard, as we saw, to our everlasting shame, in the wake of President Obama’s election.

    Sorry for rambling on. If you want the TL, DR version: Clement’s argument is standard fare in equal protection cases. Rest assured that Windsor’s counsel will be meeting those arguments head on, with the kind of stuff I mentioned above. And, by the way: all of these arguments really are directed at Justice Kennedy, and we know his track record on gay and lesbian issues. You can be sure he’s been keeping score on the political powerlessness front, so he’ll have little difficulty seeing through Clement’s arguments.

  • jnorris

    Christians and old people meet the same criteria, so we can take religion and age out of the anti-discrimination laws as well.

  • plutosdad

    This is an insight into the victimhood complex that people of privilege have when minorities start demanding to be treated equally.

    He has also created a nice little catch-22

    Losing court cases = you need protection.

    So by his logic, winning court cases = you don’t need help and you should therefore lose court cases.

    No matter what, the minority will lose. that’s how he and the rest of the privileged classes want it.

  • DonDueed

    If LGBT has such vast political clout, why is there a DOMA law at all? Surely they could just flex their legislative muscle a bit and get the law repealed in Congress.