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.