Boehner DOMA Counsel Said Some Laws Not Defensible

The attorney hired by House Republicans to defend the Defense of Marriage Act in the wake of the Obama administration’s decision not to fight for the 1996 federal law stated a position in 2005 that is identical to Obama’s recent DOMA stance, saying the Bush White House would defend acts of Congress as long as “reasonable arguments can be made in the statute’s defense.”

Testifying at his 2005 confirmation hearing to be solicitor general, Paul D. Clement told senators, “Whenever the constitutionality of an act of Congress is called into question, outside of a narrow band of cases implicating the president’s Article II authority, the office will defend the constitutionality of the acts of Congress as long as reasonable arguments can be made in the statute’s defense.”

Indignant over Obama refusal to fight for '96 law, House turns to Bush official who took same posture on “reasonable” standard

Clement's appointment was announced by the House leadership on April 18.

In February of this year, the Department of Justice wrote to John Boehner, the speaker of the House and an Ohio Republican, saying that it viewed DOMA as unconstitutional and would no longer defend the statute.

“As you know, the department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government,” Eric H. Holder, the attorney general, wrote. “However, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the department does not consider every plausible argument to be a ‘reasonable’ one.”

In Bush's first four years in office, the White House declined to defend federal laws nine times, including once when Clement was the acting solicitor general, according to documents related to Clement’s confirmation hearing.

DOMA requires the federal government to not recognize same-sex marriages and allows the states to do the same. Several groups, including Lambda Legal, the American Civil Liberties Union, and Gay & Lesbian Advocates & Defenders have filed court challenges to the law. Clement’s first filing will come in a New York DOMA challenge brought by the ACLU.

Clement was the principal deputy solicitor general from 2001 to 2005, when he became the solicitor general. That office is essentially the federal government’s lawyer. Clement left that office in 2008 and is now a partner at King & Spalding, a Washington, DC law firm.

Clement’s résumé suggests he is generally conservative. He was a member of the Federalist Society, a right-leaning legal group, from 1998 to 2001. He published articles in a Federalist Society journal and in a journal published by the Washington Legal Foundation, also a right-leaning group. Clement has also given speeches at Federalist Society events.

Clement was the deputy under Ted Olson, a conservative attorney who, along with David Boies, succeeded in having a federal district court last year strike down California’s Proposition 8, a 2008 ballot initiative that barred same-sex marriage in the state.

Clement told the Washington Post in 2010 that conservatives have “come to terms” with Olson's work on that case “but those who never understood it are still scratching their heads.”

During his time in the solicitor general’s office, Clement successfully defended the Solomon Amendment, a 1996 law that denied federal dollars from colleges and universities that barred military recruiters from their campuses. Some schools that objected to the Pentagon’s Don’t Ask, Don’t Tell policy had banned recruiters, and they sued saying requiring them to admit recruiters violated their First Amendment rights.

“The federal government does not insist on any predetermined level of access,” the New York Times quoted Clement saying during 2005 arguments on the case before the US Supreme Court. “Rather, it simply asks what other employers receive. Likewise, the recipient schools remain free to criticize the military and its policies… Of course, they remain free to decline federal funds altogether.”

In 2006, the US Supreme Court unanimously upheld the Solomon Amendment.

More recently, Clement has represented the National Rifle Association in court challenges to local ordinances that limited or banned gun ownership. He is also representing 26 states in their challenges to the 2010 federal health care law.

For gay groups and House Democrats, a major issue with hiring Clement is that he is likely to be very expensive.

“Not only are House Republican leaders defending the indefensible, they’ve brought in a high priced attorney to deny federal recognition to loving, married couples,” the Human Rights Campaign said in a statement. “Speaker Boehner appears ready to go to great lengths, and the great expense of a high-power law firm, to try to score some cheap political points on the backs of same-sex couples.”

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