There are a couple of interesting developments in the legal challenge to the Defense of Marriage Act in which the House has hired Paul Clement to defend the constitutionality of the law. The first is that Clement apparently tried to cite lots of research about the dangers of gay parents in his filings, but without making the sources of that research available for depositions and cross-examination. AmericaBlog reports:
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.
This is a bit overstated. It isn’t unusual for attorneys to site scholarly literature in their court filings without actually having the authors of that literature testify in the case. The other side is, of course, free to cite contrary literature and make arguments in their reply briefs as to why those citations are valid or not. But this is really just a prelude to the real problem, which is that one of the researchers cited by the defense has filed an affidavit saying that they distorted her work. I’ll put the affidavit below.
Paul Clement is an absolutely brilliant appellate lawyer, considered one of the best there is. But this kind of thing will not endear him to the judge in this case.