DOMA

Two key principles in passionate moderate politics are (1) a commitment to proper procedure and (2) a commitment to upholding and improving our best institutions. Some recent developments over the defense of the Defense of Marriage Act (DOMA) caught my attention as examples of moderate and immoderate politics regarding these two principles. In particular, this article at Slate highlighted the various commitments well.

First, Human Rights Campaign is not dedicated to moderate politics. Which is fine for them – they’re a liberal advocacy group and they’re up-front about that. No one should be surprised that they would try to win their case by applying extra-judicial pressure, by stepping outside the procedure of civil litigation to attempt to choose their opponents.

Second, Paul Clements is here an advocate of moderate politics in the judicial maters. He argues correctly that “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” Lawyers on the left and right have fought long and hard, the world over, to defend the seemingly indefensible. Without them, important advances in rights and liberties may not have been made.

Third, Dahlia Lithwick, despite her liberal stance on DOMA, is also a committed moderate in this regard. She agrees with Clement that it will be better for all involved for DOMA to have the most vigorous defense it can possibly get. More importantly, it is crucial for maintaining and strengthening our legal system.

Fundamentally, what Clements and Lithwick both posses (and Human Rights Campaign does not) is a faith in the judicial system. I know Lithwick has deep reservations about certain parts of that system and suspect Clements does too. But ultimately, each believes that most of the time the courts are the best place for handling legal matters and that they’re strengthened by being kept somewhat insulated from the day to day of politics. That kind of faith is essential for strengthening our political institutions and body politic.