Given the landmark ruling yesterday on Obamacare, it might seem difficult to fathom that there is a case of greater import making its way to the Court. That case is the defense of DOMA. DOMA is the Defense of Marriage Act signed in 1996 by President Bill Clinton and supported by overwhelming majority in both Houses of Congress.
DOMA set off multiple law suits since its signing and the Department of Justice had, until last year, been defending the law. One of the roles of the DOJ is to defend the laws of the country. This is true whether the current administration agrees with the law or not. However, in another abuse of presidential power, President Obama decided that he no longer supported DOMA, and directed the Department of Justice to stop defending DOMA in the courts. This occurred early in 2011.
Given this extraordinary and unilateral decision by the President, the House of Representatives chose to move forward defending the law. Speaker Boehner hired topSupreme Court Attorney and former Solicitor General Paul Clement to represent the House of Representatives in court cases involving the law. Paul Clement is becoming more of a household name as he represented two especially notable cases this term: he represented Arizona in its battle against the government to defend its immigration law, and he represented the 26 states that sued the government for passing Obamacare. Clement’s success in these two cases is mixed given that much of the Arizona immigration law was found to be preempted by Federal law and therefore struck down, though the most controversial portion of Arizona’s law was upheld. As for Obamacare, as is well known at this point, the Court agreed with many of his arguments while still upholding the law by re-defining the mandate as a tax. Regardless of the result of these two cases, Clement is considered a top-notch attorney who is well-trusted to defend conservative cases at the highest court.
The decision of House Speaker Boehner to hire Clement was met with much opposition at the time. LGBT groups that oppose DOMA lobbied Clement’s firm, King and Spalding, to drop the case. In an extraordinary move, they did drop the case, and Clement immediately resigned. Clement joined Bancroft PLLC and continued his defense of the law. It should be stated here that Clement asserted in his resignation that his decision to continue with DOMA and leave King and Spalding was not due to his personal support of the DOMA, but he felt obligated to continue with representing the House given that he already agreed to do so as a matter of principle It is unknown if he actually supports DOMA.
Either way, Clement and Bancroft have been defending DOMA ever since. This has been met with losses at the appellate level. In fact, so far, Clement is losing on DOMA far more than he is winning. However, from the beginning, the intention was to take this case to the Supreme Court.
And, now Boehner and the House have done so. On Friday, the appeal was made to the Supreme Court. The Court will decide early next term if it will take on the case (it is very unlikely that it would not take the case). The petition to the Court can be read here.
This battle is more important even then the Obamacare case because it gets at the very issue of who we are as a society. Those who oppose DOMA want to re-design the basic family structure from the way it was established by God. This decision will have ramifications that go beyond healthcare, or taxes, or states’ rights, or Constitutionalism, or any other topic that has been the headline over the past few days. This case involves who we are as a people. One can only hope that Chief Justice John Roberts and others get this one right.