No Excuses: Anti-Gay Activists Can't Blame SCOTUS For Their DOMA Loss

In the wake of the Supreme Court's historic decision to strike down the federal Defense of Marriage Act (DOMA), anti-gay activists have run out of excuses to explain their ongoing legal defeats in their fight against marriage equality.

Anti-gay activists have a long history of dreaming up wild excuses to explain away embarrassing losses in court:

  • When proponents of California's Proposition 8 lost in court in 2010, it was because their lawyer wasn't good enough
  • When it was discovered that the federal judge in that Prop 8 case was openly gay, his "bias" was to blame for their loss
  • When a straight judge refused to vacate the gay judge's Prop 8 decision, it was because he's a liar
  • And when a federal judge found DOMA to be unconstitutional in 2010, it was because the Obama administration wasn't defending the law aggressively enough

This rationalization may have bought anti-gay groups time as their cases worked their way up the judicial ladder, but it won't do much to soften the blow of the Supreme Court's decision in Windsor v. United States.

The lead attorney defending DOMA in the Windsor case was Paul Clement, one of the country's most well-known and successful constitutional lawyers. Clement had been dubbed the "LeBron James of law," and his decision to take up DOMA's defense was celebrated by anti-gay groups across the country.

Focus on the Family celebrated Clement's announcement, calling it "really great news":  

Ladies and gentlemen, it just doesn't get any better on a Monday than to hear that the House of Representatives has selected Paul Clement as its outside counsel to take on the defense of DOMA after the President and the Department of Justice's rather spectacular failure to do so.


I'm breathing just a little bit easier today. This is really great news. [emphasis added]

Maggie Gallagher, co-founder of the National Organization for Marriage (NOM), was similarly overjoyed:


Paul Clement is one of the ablest litigators in the country, whose seven years acting as solicitor general is the longest period of continuous service since the 19th century. The solicitor general's job is arguing cases before the U.S. Supreme Court, and Clement has argued more than 50 such cases.

As a friend of mine, himself an able litigator, put it: “He's the best. Boehner could not have made a better choice.”

And so, thanks to Boehner, Obama's plan to sabotage DOMA's defense has backfired.

For the first time since Obama became president, we will have a legal eagle in the courtroom defending DOMA who actually wants to win the case. [emphasis added]

And Tony Perkins, president of the Family Research Council, stated that Clement's defense would put the Supreme Court "in the best position" to uphold DOMA:

In the American system, everyone is entitled to have a good lawyer to make the best constitutional arguments. This puts the court in the best position to reach the right result. In the case of DOMA, having very good aggressive lawyers on both sides is what will put the courts in the best position correctly to hold that DOMA is perfectly constitutional. [emphasis added]

But over the course of his defense of DOMA, it became clear that not even Clement would be able to save the law. The high-powered attorney relied heavily on junk science and misinformation to advance his case against marriage equality, and even outside observers noticed that Clement's defense of DOMA was in serious trouble.

On June 26, the Supreme Court ended up rejecting Clement's arguments and finding that DOMA was unconstitutional on federalism and Equal Protection grounds.

Since the decision in Windsor, NOM president Brian Brown has attempted to accuse the Supreme Court of bias, vaguely citing "corruption" in an op-ed for in which he attacked the Supreme Court's “illegitimate decisions on same-sex marriage”:

I've never seen such corruption in the judicial system as I have seen in this case.

But his accusation falls flat. Opponents of marriage equality recognized that Windsor provided them their best opportunity to advance their strongest legal arguments in defense of marriage discrimination in court. Even right before the decision was announced, they were confident they would win.

They didn't, and this time, they have nothing to blame except the weakness of the anti-equality position.