Le·gal In·sur·rec·tion

Sorry but I disagree with your assessment. Defending the prisoners at Gitmo has to do with due process and the bill of rights under the Constitution. So does the refusal to implement DOMA.Just because Congress passes a law does not make it Constitutional. If a lawfirm or a lawyer does not believe in the Constitutionality of a law they are not duty bound to defend it. They are on solid legal principle in both cases. Infact the legal principal is the same as far as I can see-Equal protection under law does come to mind.In fact former solicitor general Ted Olson agrees with me as far as gay marriage is concerned as well...the Constitution applies to all.

http://libertysspirit.blogspot.com/2010/08/former-solicitor-general-ted-olson.html

"Defending the prisoners at Gitmo has to do with due process and the bill of rights under the Constitution."

How? They've never been subject to US law, they're war criminals, and under treaties the US is signatory to, subject to summary execution.

In fairness to King and Spaulding, didn't Congress' approval rating recently fall below that of the Gitmo Detainees?

They are on solid legal principle in both cases. Infact the legal principal is the same as far as I can see-Equal protection under law does come to mind

Maybe you can point to any state law that demands people seeking a marriage license to state their sexual orientation - THEN, you have an "equal protection" argument.

The sexes are not fungible, the law has always recognized that and it doesn't make a statute defining the sexes of a participants in a contract any more "discriminatory" then it does by limiting the number of participants in the contract, or the consanguinity of the participants.

You may argue your opinion on the Constitutionality, but to demand that is settled law?

Yeah, like AGW is settled science.

Until two men or two women can naturally create offspring with no artificial medical intervention, society can rationally delineate between heterosexual and homosexual marriage. In the same way society can rationally delineate between intra-family marriage and age requirements for marriage.

One can argue the prudential merits of such positions, but there is no legal (and certainly no Constitutional) provision that *requires* any particular outcome.

To posit otherwise is to reveal your inner fascist. I realize that's fashionable these days - liberal fascism, that is - but it doesn't make it anything other than blatant fascism.

@RobCrawford I suppose you missed the US Supreme Court case of Hamden, which stated that the prisoners at GITMO are subject to US Constitutional law. That since GITMO is in the purview of the US it is under the purview of the Constitution. If you are under the aegis of the Constitution you are entitled to all the rights in the constitution and the Bill of Rights.If you do not like it take it up with SCOTUS.While I believe Hamden was a habeas corpus case, the same rational applies to all rights under the Constitution.

As far as the rules of war, there is the Geneva Convention on the treatment of prisoners during war and there is also the American Military Code of Justice that needs to be followed. The USMCJ is very specific about the rights of prisoners. While it does not meet the level under the US Constitutional due process there is due process nonetheless. The US does not summarily execute persons caught on a battlefield. The US is not party to any valid treaty that would allow that.

@Darleen- sorry but your argument is specious. Actually it is an equal protection argument when someone is denied the right to marry another adult based upon the placement of their genitals. I suggest you link to the blog I posted and listen to the former solicitor general of the United States Ted Olson discuss the equal protection argument.He is one of the foremost Constitutional scholars of our time and an avowed conservative.

Also just because the state does not ask a question does not mean a right has not been denied. Violations of rights are not only direct but may be indirect as well.In fact if a law even has an unintended rights violation as a consequence that law can be seen as a violative of the constitution and therefore void/unconsitutional.

Lastly I did not say it is settled law. I said that the law firm or lawyer who believes the law is unconstitutional does not have to defend it.If there was a law that stated you may kill any red headed person you see with impunity, you as a lawyer or citizen for that matter, do not have to wait until the court decided if that is legal or not you do not have to defend it nor obey it. The same principle hold with DOMA. I quite frankly gave MY OPINION of the rational for the law firm resigning from representing the congress and defending DOMA.It is MY OPINION that they fall under the category of equal protection.In fact that is the basis of all the law suits brought on behalf of gay marriage.

Lastly @Darleen- comparing a scientific theory to the rule of law is a little like comparing a rock to a stream of water. You may find the science behind global warming questionable, however, the science itself is not what is wrong it is the application perhaps. At best however, it has no more to do with the dynamics of a legal question than rocks and water are the same item. If you wish to compare two ideas in law then I would suggest you compare the concept of federalism v state's rights to the idea of equal protection and gay marriage. Both are controversial, dynamic and constantly in question and believe it or not still highly unsettled.

Scientific theory has absolutes. There are fixed laws of science by which the universe functions and without them we would not exist.How they are applied in any given situation is the dynamic but the scientific law remain the same. Therefore a rock.

Law on the other hand is like a stream of water. It is ever changing and dynamic and controversial at times depending on the era that the laws are written. It is why Madison wrote in the Federalist Papers that they left the Constitution so vague on many issues because they knew that society would evolve and change and there needed to be a way for the Constitution to change with the times.

There is an interesting book on the subject written by Alan Dershowitz which discusses the dynamics and history of the creation, and development of law in our society. You might like it.

@Luke- liberal fascism had to do with Jonah Goldberg's thesis detailing the evils of socialist societies.A very interesting book, by the way. But not truly having anything to do with a discussion of US Constitutional law.
If you wish to opine about political correctness then perhaps you are correct in discussing how something may or may not be approached. However, what we are talking about here is the rule of law and that is all. As Ted Olson states the constitution is for everyone. In fact an interesting read on the subject is former justice Sandra Day O'Connor's book, the Majesty of the Law. She details the purpose and need for the Constitution. In it she discusses how in fact the Constitution is not there to protect the majority. The majority will always protect itself, by extension you might also posit that the Constitution is there to protect the majority from themselves. Furthermore, she goes on to state that the purpose of the Constitution is to preserve the rights of the minority.In this case, it would be member so the gay community who wish to marry.

Hey Luke,

So the government prevents infertile heterosexual couples from marrying? And post-menopausal women? How about men with vasectomies? Or erectile dysfunction? At the very least, you would argue that the state could discriminate against those people, right? In order to protect the state's "rational" interest of ensuring that only fertile straight people have their relationships recognized by the state?

sorry but your argument is specious

Really? Funny how all those public institutions - grade schools, high schools, colleges and universities ... allow for the segregation of the sexes.

"Women's Sports"?? How unConstitutional! I'm sure you won't let this kind of insult to Equal Protection go unchallenged!

IP

You may think my preceeding remark little more than snark, but it is an appropriate response to your multi-word comment that never addressed the points I made.

Understand I have no issue with STATES configuring their family law statutes as they wish and I would/do welcome civil partnership legislation that would allow, as marriage statutes do, couples a default set of legal duties and obligations. However, I would rather see the state obliterate all marriage statues and discontinue any licensing rather than it enforce the fiction that same-sex couples and opposite-sex couples are the same. A cat and a table are not the same even if they both have 4 legs.

Again ... a gay man has the same "right" as a straight man to marry. Its just that the law says that marriage licenses will be issued to couples of one man and one woman, who are both adults and not of close kinship.

If it is "unconstitutional" to limit marriage by sex, then it is as "unconstitutional" to limit it by number or kinship.

The Constitution isn't a document that only a high priesthood that only a select few can weigh in on and the rest of us citizens must genuflect and accept without question, so appeals to authority (Oh look! Ted Olson!! SQUIRREL!!!) without substantive argument on your part to address my points holds little water.

... oh crud. My grammar was horrible. My back is killing me and I should of use the preview before posting.

Argh.

Darleen,

This is ridiculous. The reason it's fine to limit marriage by number or kinship is that those relationships are damaging to the people involved. And frankly, to the extent there's a lack of evidence that polygamy is harmful (and I don't know if there is, I'm just being consistent), that shouldn't be banned either.

What is unconstitutional is to limit marriage by sex, BECAUSE THERE IS NO GOOD REASON FOR DOING SO. Marriage is a contractual relationship, as you have correctly pointed out. As long as the state is in the business of allowing, recognizing and enforcing contracts, it needs at least a rational basis for refusing to do so for certain individuals. And as Luke so successfully demonstrates above, there just isn't one.

@Darleen- actually women's sports, or rather the lack thereof, is the reason for Title IX. Title IX has also been the subject of numerous lawsuits involving equal protection, that is why it was implemented the first place.While on its face the law has to do with equal access to sports for all sexes the purpose if the access to the scholarship money that comes along with playing sports and therefore, allowing access to the less fortunate for college. In fact there was just a recent case involving the implementation of Title IX and its continued need.

Second as far as segregation of the sexes. This may come as a surprise to you but gender is not a protected right under the constitution. However, the right to marry is a protected right. In order to have equal protection in the first place you must be part of a protected class.

Third education which falls under a state's right is not a protected right under equal protection. The cases dealing with affirmative action and education had to do with the actions by the institutions based upon race. Depending upon the class that is being "deprived" denotes the level of scrutiny required under law. For sexes if there is a important state reason to segregate the sexes, which when it comes to education there may be, then it is not seen as violative of equal protection.

Rights under education, especially rights for those in public school are very different than the general rights we practice. Under Education law there may be limitations on assembly, speech and behavior which would not be tolerated in society as a whole.That also includes how the sexes may be treated, i.e segregated.

By the way I am done responding to you. But I do suggest you open a Constitutional law book.

Sorry I do have one more thing to say to @Darleen- guess what you can say whatever you like about the Constitution but there are nine individuals that will define what is constitutional and what is not. Guess what its called the Supreme Court. It is one of the three parts of government and that is their job. And yes, when they rule you do genuflect and follow what they say. They are the final word on any Constitutional legal topic until they overrule themselves.

Oh and just because you didn't understand what I said doesn't mean I didn't address your issues.

@IP - "And yes, when they rule you do genuflect and follow what they say." Like with Citizens United? If the Supreme Court rules that there is no federal constitutional right for two people of the same sex to marry, will that be the end of the debate? I think not. Rather than insisting that the constitutional law is crystal clear, which it most certainly is not, why not recognize that this is an issue on which reasonable judges may differ? Are you so confident of success that you really want the Supreme Court to be the final arbiter rather than let the political process work? Many advocates of same sex marriage were against the strategy of taking the case to the courts for fear of a negative Supreme Court decision.

"Those are my principles, and if you don't like them... well, I have others."
Groucho Marx
If that law firm didn't want the job, they shouldn't have taken it in the first place. On what other issues can they be bullied? Do they know this makes them cowards? Perhaps we should discuss whether or not their level of cowardice rises, or sinks, to the level of "craven"?

The discussion about same sex partners in marriage is focusing on the wrong part: families are where children have been naturally produced and raised. A culture needs children to continue. Children learn about the wider world first in their homes. They learn about men from their dad and brothers, about women from their mom and sisters. Where does the expression "Natural Law" come into play?

Can laws be passed to make life easier for those partners of the same gender? Sure. Do they need the same assistance that natural parents need in raising children? Probably not.

Darleen- actually women's sports, or rather the lack thereof, is the reason for Title IX. Title IX has also been the subject of numerous lawsuits involving equal protection, that is why it was implemented the first place.

Then title ix is unconstitution according to your standard because it makes a distinction merely on the "arrangement of genitals".

Your standard, take it or leave it. Either the sexes are fungible or they are not.

Make.up.your.mind.

there are nine individuals that will define what is constitutional and what is not.

Funny, but that is not the role of SCOTUS. If it was, then why have elections or legislatures at all?

Let us all welcome our Imams of the Constitution.

What is unconstitutional is to limit marriage by sex, BECAUSE THERE IS NO GOOD REASON FOR DOING SO

So thousands of years of trial and error mean nothing? You see, I say THERE IS NO GOOD REASON FOR A RADICAL CHANGE IN A FUNDAMENTAL INSTITUTION.

It isn't up to me to defend marriage. It is up to YOU to convince people that a radical change is wise.

And obviously the same-sex advocates have been unable to do it and have had to get what they want by judicial fiat.

Oh and just because you didn't understand what I said doesn't mean I didn't address your issues.

... he said, with pinky extended.

Oh, and IP, one last thing

This may come as a surprise to you but gender is not a protected right under the constitution

You might like to pick up the Civil Rights Act of 1964 which made SEX a protected class.

(can we please stop substituting the word "gender" for sex)

Apologies to Prof. Jacobson for my crankiness, but I'm on muscle relaxants for my back and am not suffering fools lightly at the moment.

Anyone who supports gay marriage on a equal rights protection claim engages in fallacious logic. Homosexual men and women have the same right to marry a person of the opposite sex as I do. When a homosexual man can get pregnant and a lesbian woman can impregnate her partner, then you would have an argument.

BTW, if anyone ever does prove that homosexuality is predetermined by DNA and they come out with a test for it, should it be legal for a couple to abort an unborn child because it will turn out gay?

You'd think King & Spalding had agreed to represent global warming deniers -- now that would be foolish because, as we are told, the science is quite settled. Clearly it would be a tragedy if the denier side was allowed to state their case with effective legal representation.
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On a related note, I was expecting a blistering criticism of King & Spalding from Prof. Jacobson. I can understand firms squirming over some clients, but K&S is kicking the US House of Representatives to the curb. Is this THE FIRM that Tom Cruise used to work for?

"The attempt to deprive Congress of its counsel of choice based on the alleged unpopularity of DOMA (as Clement says, "in certain quarters") stands in stark contrast to the position of the American legal community when it comes to representing detainees at Gitmo."

You're seriously going to try to equate the DOMA to actual human beings? The latter have a bunch o rights to representation. They have a bunch of rights such as the 4th and 5th, right to a jury trial, and on. What rights does the DOMA have?

Uh.... none. It's a piece of paper. Nor were King and Spalding representing "congress" seeing as how half of congress has absolutely no interest in defending DOMA at all.

@Professor Jacobson I do not think there is any other choice but to take the issue to the nine Supremes. There has to be a consistency among the states and the only way is for SCOTUS to rule. It is what their job happens to be. I do not think leaving this issue up to a referendum is the way to go. By that thinking every time there is a great societal issue or change of course we vote on every issue. That is not our republic. Of course those who think SCOTUS is obsolete can try to amend the Constitution to deny SCOTUS a role in our three branches of government but I don't think it would get very far. There is a reason we have checks and balances in our Constitution because the founding fathers knew that the legislatures to be venal self-interested organisms in need of oversight. If we want our legal ideas represented we need to make sure that we elect the right person for the Presidency and the Congress and luckily they still do not have the last word.I for one do not think that the idea of civil rights or women's rights would have been successful if left to each individual state. Society doesn't necessarily change unless it gets a huge kick in the pants, especially when it is full of those that are ignorant and devoid of any understanding of law, constitutionality and quite frankly lack respect for others of the human race. I for one as a woman and Jew do not think allowing those that derided me because of my sex and my religion should have a say in whether I am allowed to be a full fledged member of society. Somehow I prefer to go the route of the Bill of Rights. History itself proves that the only place for minorities to truly be protected is by the Supreme Court.(Congressional Civil rights Law was only useful once it was fully backed by SCOTUS)

Citizen United may be argued about whether the Court was right or not but it is the law of the land until SCOTUS overrules itself or Congress finds a way to rewrite the present law to do a endrun around the SCOTUS ruling.

Yes, many same-sex marriage advocates didn't want to go to SCOUTS because they feared that SCOTUS is too conservative leaning and once ruled that would be the end of the issue.Hence SCOTUS is the final arbiter of law in this country. However, that is not the issue at hand. The issue that we were discussing was whether King had a right to withdraw from representing Congress due to DOMA and whether a lawyer has an obligation to defend a law they disagree with or believe to be unconstitutional. It is an interesting discussion and it goes to the heart of ethical guidelines for lawyers. However I do believe that lawyers have a right to defend their beliefs and decide for themselves if they wish to defend a client. The underlying issues of civil rights and constitutionality is what the civil rights bar is all about after all is it not?

Meanwhile I have found something for you that will provide an answer for our last discussion from a few months ago about social media and the responsibility of partners in law firms. It is from the law firm of Mayer Brown http://www.mayerbrown.com/publications/article.asp?id=9923&nid=6

Tlaloc, "a piece of paper". Funny, I seem to remember another group who equated laws and treaties to "scraps of paper". Of course, they were socialists too.

@Darleen a little something for you about checks and balances in the Constitution and the job of each branch. Before you discuss, even in your self-acknowledged drug addled stupor the obligations and purposes of the SCOTUS it would behoove you to read it. Then as I have said earlier pick up a Constitutional law book and learn something.

http://americanhistory.about.com/od/usconstitution/a/checks_balances.htm

IP

Couple of questions for ya. You state "The US does not summarily execute persons caught on a battlefield. The US is not party to any valid treaty that would allow that.". This is blatantly false. Such executions are allowed under the Geneva Convention. The most famous one is a picture I'm sure you've seen a thousand times: Pic. Making such a stupid statement really undermines your arguments.

Second, you claim that "There has to be a consistency among the states" with regard to same sex marriage. Why does their "have" to be? DOMA doesn't prohibit any state from recognizing such, all it says is that other states are not required to recognize them, a position that is entirely consistent with, say, gun control and concealed carry laws, something that is, unlike SSM, actually enshrined in the Constitution. You're arguing that SSM should be given protection that is NOT afforded to an enumerated right. That's....absurd.

"Tlaloc, "a piece of paper". Funny, I seem to remember another group who equated laws and treaties to "scraps of paper". Of course, they were socialists too. "

You really need to learn that the term socialist isn't the emotionally charged term you think it is, at least not for the majority of people. Consequently your intended impact rather fizzles.