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Veteran Supreme Court Litigator Discusses Defense of Marriage Act

September 21, 2011

Challenging the federal Defense of Marriage Act may be the most effective means to advocate for the rights of gay, lesbian, bi-sexual and transgendered people to wed, attorney Paul Smith said during a visit on Sept. 21.

Signed by President Clinton, DOMA was the first federal law in the nation’s history to eclipse states’ rights in deciding who can and cannot marry, Smith said.

“This is deeply offensive to conservatives who think the federal government is trying to overreach,” Smith said.

By contrast, Smith said, a current effort to challenge the constitutionality of California’s ban on gay marriage could backfire if Perry v. Schwarzenegger goes before the U.S. Supreme Court.

Expecting five of the current justices to rule in favor of marriage equality is “a big ask,” said Smith, a partner with the Washington-based Jenner & Block who has argued 14 cases before the U.S. Supreme Court. Those cases include Lawrence v. Texas, which involved the constitutionality of the Texas sodomy statute.

Smith is a former board member of the American Constitution Society, the local chapter of which sponsored the event.