Marriage Gets a Defense in Court

Chuck Donovan /

Speaker of the House John Boehner’s announcement that former Solicitor General Paul Clement will lead the defense of the Defense of Marriage Act (DOMA) in federal court is a victory for the rule of law—and for an irreplaceable institution of civil society.

Ever since February 23, when Attorney General Eric Holder announced that he and President Obama had concluded that DOMA was unconstitutional, litigation over the 1996 law has been held in abeyance awaiting yesterday’s decision by the Speaker. The naming of Clement ends all doubt as to whether marriage as the union of a man and woman will get the vigorous defense it deserves in federal appeals court and, if necessary, the U.S. Supreme Court.

Advocates of redefining the institution of marriage have long sought to create an impression of irresistible momentum in their direction. That sense of momentum has traditionally relied on strategies involve judicial activism and incremental approaches like civil union legislation. Since the beginning of the legislative sessions in 2011—indeed, since 2009—no state has adopted same-sex marriage. Forty-five states, in contrast, have retained their protections for traditional marriage (31 of them actually strengthening their laws via voter-approved constitutional amendments). (more…)