Paul Clement is a super lawyer hired by House Republican lawmakers, whose brief identifies them as the Bipartisan Legal Advisory Group of the U.S. House of Representatives to champion their cause. Conservative law makers have retained the services of this $520 an hour attorney on several occasions all billed to tax payer. He is defending South Carolina’s illegal voter ID law, Arizona’s SB 1070, leading the challenge to the Affordable Care Act and most recently unconstitutional Defense of Marriage Act. Clements 60 page brief to the Supreme Court came at the end of a nearly two year retainer costing the American tax payer $3 million.
The SCOTUS is preparing to hear arguments on March 26-27 to determine the constitutionality of two laws that define marriage as the union of a man and a woman. House GOP are looking to convince the Supreme Court to leave marriage discrimination untouched. “Judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves,” their brief said.
According to Clement, gay people are a special interest group. The Constitution, as established by precedent, should protect minority groups when prejudice prohibits recourse to the political process. An entire section of the brief is devoted to demonstrating how powerful the gay community can be when voting. Same sex marriage is supported by President Obama. One percent of the Senate is openly gay. Both of these facts demonstrate there is a viable political process available.
The brief contains the following, “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. Given 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.”
In the sixties African American leaders routinely organize well attended sit-ins, marches and other events that gained national attention. Their ability to organize did not lesson their struggle to gain full equality by law to their white counterparts. It bought greater awareness but did not change the commonplace sentiment of that time. Some may feel this is not a fair comparison. Maybe the plight of women to achieve equality in treatment and in the workplace is more acceptable to those who feel so. In both of these examples the SCOTUS had to first recognize the discrimination practiced violated the Constitution.
Should a sector of America who are law abiding citizens, be denied a basic right their heterosexual counterparts enjoy? The act of organizing of a group is a coalition seeking change. The ability to organize does not negate the need for protection. Paul Clement is attempting to get the court to dismiss the case contending the gay community is far from disenfranchised in their political plight. The SCOTUS is charged with reconciling conflicting laws. It is the House GOP hope the issue is returned to Congress to determine the future course of legislation on same sex marriage.
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