Bob Barr on DOMA
May 03 2011 2:10 PM ET
The Atlanta-based firm King and Spalding, and the firm’s now
ex-partner, former George W. Bush solicitor general Paul Clement, were
criticized by many for taking on this case — a decision that King and
Spalding reversed a week later. What’s your view on pressuring law firms
to avoid this type of litigation?
I think it’s unfortunate, and
I’m going to wear my lawyer’s hat now: It’s important to recognize that
individuals and organizations have the right to be defended and to have
lawyers represent them and advocate for them. Whichever side of the
equation one is on, if we start pressuring or intimidating law firms or
lawyers not to take on controversial matters, then there’s going to be
[a greater] chance that advocates on both sides of the issue will not be
able to get the very best representation that they can.
think on the part of those who might have been pressuring King and
Spalding to back away or to not defend, I think that’s somewhat
shortsighted. Because it may not be long when some of those folks are
on the other side of an issue and they want a strong advocate in a
particular firm. But yet because it’s controversial, the firm says, “I’m
sorry, we can’t deal with that.”
But as you’ve acknowledged in
recent years — including during your run for the Libertarian
presidential ticket in 2008 — DOMA has adversely affected gays and
lesbians in so many ways. Don’t you think that a major law firm —
especially one that touts its own LGBT diversity — should expect
backlash, should expect to be criticized?
It’s not the
controversy that’s illegitimate. I can understand that, and I have no
problem with people who might be on the other side of an issue being
taken by a law firm in representing a particular issue.
not so much about the issue itself. We try to be a nation of laws and
to make sure there are always avenues and lawyers, those trained to
advocate on our behalf, to protect rights and to make sure that there
is a proper and vigorous debate within our legal system. I think that’s
the more important principle. It’s important that lawyers and law firms
feel free and not feel intimidated to take on controversial cases.
I’m not privy to what goes within King and Spalding’s review
committee. They may very well not have properly vetted it — that
certainly is an appropriate exercise that the law firm should go
through, to make sure that there are no serious conflicts with other
clients, for example, or that taking on advocacy of a particular cause
might be contrary to something else that they’re doing. And if that’s
the case, then they didn’t do a very good job, and they should have.
now support the repeal of DOMA, and you’ve written that you’ve “come to
the conclusion that DOMA is not working out as planned.”
were a lot of folks, of course, at the time in 1996 who were very
disappointed, a lot of Republicans very disappointed that we didn’t go
further with the Defense of Marriage Act. They wanted a definition that
would apply to the states so that it would prohibit the states from
recognizing anything other than the same thing that the law eventually
wound up recognizing for federal law purposes, and that is the lawful
union between one man and one woman.
What seems to have happened
since then — the way the government can do this can be very subtle:
You have marriage defined for federal law purposes — tax laws, VA
survivor benefits, Social Security survivor benefits, and so forth — as
the lawful union between one man and one woman, and yet at the same time
you’re going to let the states do what they want, and you’re going to
protect each state from having any different definition of marriage than
the one its citizens have chosen. But then you say, “Well, but remember
now, you’re not going to get federal benefits that you want, but hey,
you’re free to go ahead, you’re just going to lose out on all that
money.” It’s being used for something that it was not intended to be
used for, at least in my eyes. So it’s become, as I’ve said, the tail
wagging the dog.
So do you believe that gays and lesbians should have the fundamental right to marry?
But you also believe that the states should have the right to put this up to a vote, to decide whether to permit such marriages?
I’m talking about it is that the eventual goal ought to be to get the
government out of the marriage business, back to the days when it wasn’t
involved in the marriage business. But similar to the debate perhaps
over tax reform — a lot of people want to go from where we are now, with
a massively complex and unfair income tax system, to a fair tax or a
national sales tax — and that’s a huge leap. So one thing I do is say,
“Yes, if we could get to a fair tax, that’d be great. But in my view
you’re not going to get there all in one fell swoop. So push for a flat
tax, an interim measure.” So I guess what I’d say is, work on the
marriage issue as a broad national issue — we ought to get the
government out of it. But at the same time, try and get people to think
of it as at least something that they ought to be free to decide at the
state level. Leave it up to the people in the states. Then it’s easier
in the next step to getting the government out of it, lock, stock, and
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