04/27/2011 10:46 am ET Updated Jun 27, 2011

DOMA: No Defense, No Excuse

Amid all the drama of the last few days with a law firm accepting then rejecting the ugly contract offered by the House leadership to defend DOMA in court, we should not lose sight of the real issues: First, DOMA is discriminatory, unconstitutional and indefensible. Second, House leaders are not only willing to spend taxpayers' money defending DOMA -- they are also trying to silence debate.

We can't be sure what led international law firm King & Spalding to withdraw from its agreement with House leadership to defend the so-called Defense of Marriage Act (DOMA) in court. Was it because they didn't want to be associated with defending a law that is so damaging to the LGBT community? Did they recognize that doing so would damage their ability to recruit talented lawyers as well as attract LGBT -- friendly clients? Or was their change-of-heart driven by a slightly belated sense of justice? Whatever the reason, we are happy to welcome the firm back to the right side of history.

Truth is, taking this job means that a lawyer is prepared to disseminate falsehoods, make bogus claims dependent only on junk science, and demonize an entire class of people and their children. It's not possible both to defend DOMA and to maintain at the same time that all LGBT people and their families are equal citizens deserving of a fair shake in this country. So it's not just a matter of King & Spalding showing respect for our community and for gay lawyers and staff at their firm. By refusing to take this case, they're showing respect for themselves as people, lawyers, and professionals committed to making credible claims in court.

Still, someone is going to do this job: After King & Spalding withdrew from the contract and
refused to defend DOMA, attorney and former Solicitor General Paul Clement left the firm and swiftly joined Bancroft PLLC, taking the contract and the case with him.

One of the most shocking things about this whole story is that the contract which spelled out the agreement between the U.S. House leadership and the lawyers they retained included a provision denying all employees at the firm the right to express their views on DOMA or any pending legislation related to its repeal. No phone calls to their congressional representatives, no letters to the editor, no posts on Facebook. Total silence is required. This is not just about contempt for gay people, but contempt for democracy and the fundamental right to petition the government for redress of grievance. This is about silencing opposition.

This is America in 2011. We need the courts and impact litigation more than ever. When the President and Attorney General announced they would no longer defend DOMA in court, they also said they would continue to enforce it until ordered not to do so by the courts or until it is repealed by Congress. Which do you think is going to happen first? I think the House leadership has made it very clear. The courts are the check on this abuse of power. And Lambda Legal will keep fighting in the courts until this is just a sorry memory.