I have to admit, I’m really enjoying watching Edie Windsor’s case against DOMA unfold. This is the first case where we’re seeing the John Boehner’s legal team, led by Paul Clement, in action. And, so far, not impressed. Edie’s legal team, led by Roberta Kaplan, is simply awesome. Edie’s lawyers are truly fierce advocates.
Last week, Boehner’s lawyers opposed Edie’s motion for summary judgment and filed a memo with their arguments. We posted it here. It was a memo filled with every anti-gay argument around. There were lots of citations from anti-gay literature and screeds. But, here’s the thing. Edie’s lawyers offered expert testimony from some of the most accomplished people in the country including Stanford Professor Gary Segura. Clement and his crew got to depose them. So, Edie’s expert witnesses have testified under oath by Boehner’s lawyers. But, Clement offered no experts. Instead, he tried to sneak in the testimony by citing a number of anti-gay documents in their memo on summary judgment. It’s the kind of stuff that David Boies called “junk science.” And, it’s hearsay.
Yesterday, Edie’s lawyers filed a motion to strike those documents (posted below.) In legal proceedings, lawyers from both sides are supposed to have access to witnesses. Clement tried to work around that. He also tried to pass off anti-gay screeds as expert writings. But, he’s been called out.
I think one of the best examples of how this works plays out on Page 17 of the motion to strike:
For example, BLAG relies on citations to books and articles for the truth of the matters asserted as evidence that a marriage between a male and a female provides a stable and nourishing framework for child-rearing (BLAG 56.1 ¶47.) The co-author of one of those books, Maggie Gallagher, has achieved some notoriety in the media as the President of the Institute for Marriage and Public Policy, one of the most prominent lobbying groups against equal rights for same-sex marriage. However, plaintiff was given no opportunity to cross examine Gallagher by using her own statements from her many public statements and appearances on this subject.
See, Clement tried to be very clever. He wanted to get Maggie’s testimony into the record with having Maggie deposed. And, if we noticed one thing about Maggie Gallagher, she really doesn’t want to go under oath. Let me tell you, I’d buy a ticket to watch Roberta Kaplan depose Maggie Gallagher.
John Boehner is using our tax dollars to defend DOMA. He’s paying Paul Clement a lot of money — our money. And, as I’ve said many times, Boehner and Clement don’t know what they’re up against. Edie, Robbie and the rest of the legal team at Paul, Weiss, the ACLU and the NYCLU are in this one to win it. And, they’re not letting Clement get away with anything.