Paul Clement Doesn’t Want A Courtroom Catfight Between These Two Women

The DOMA-defending lawyer Paul Clement doesn’t wanna let Margaret Gallagher Srivastav get on the stand in his case against lesbian widow Edie Windsor, because if he does, he knows that Windsor’s lawyers will tear Srivastav to bits. So how is Clement working around this courtroom catfight just waiting to happen?

You see, because the Defense of Marriage Act does not recognize same-sex unions as legal marriages, Edie Windsor had to pay beaucoup federal estate taxes on the house and assets she inherited when her wife passed away. When Windsor filed a suit challenging DOMA’s constitutionality, she asked for a summary filing; that is, she asked the court to skip a physical trial because she and the government both agreed on the basic facts of the case and just wanted a ruling.

“BUT NOT SO FAST!” said DOMA-defender Paul Clement of the Republican-lead Bi-Partisan Legal Advisory Group. “I have a stunning 5-point brief explaining why DOMA is constitutional and how gays choose to be gay, have plenty of political power, don’t face any sort of discrimination whatsoever, and make shitty parents.”

But instead of presenting actual witnesses to make these claims, Clement simply copied them out of a bunch of books (presumably the same ones used by Maggie Srivastav, since they sound so much like her usual anti-equality arguments), included them in his brief, and tried to slip them past the Plaintiff.

“BUT NOT SO FAST!” says the Plaintiff. “I had actual witnesses that you got to cross-examine, while all you have is books. You can’t cross-examine books, you crazy queen!” And so with that he filed a truly excellent brief asking to court to strike all of BLAG’s “evidence” (ie. books) from the court record. And he wrote the brief using oh-so-rich withering language that is so much a joy to read that we have included it below (no really, you will savor every last word):

In her motion for summary judgement, Plaintiff argues that the statute at issue in this case, Section 3 of the so-called Defense of Marriage Act (“DOMA”), which discriminates against her because she is a lesbian, should be subject to heightened scrutiny and is unconstitutional. In support of that argument, Plaintiff, in accordance with the scheduling order issued by this Court, marshaled an extensive and compelling record of expert testimony. That record included affidavits from prominent academics at the University of California and Cambridge University, who provided the Court with their expert opinions on topics such as the psychological well-being of gay men and lesbians, their ability (or, more accurately, their inability) to “change” their sexual orientation, and their capability to serve as competent, loving parents for their children.

Although this Court’s schedluing order gave BLAG a full and fair opportunity to submit testimony or other competent evidence contradicting these assertions, which Plaintiff submitted by means of admissable expert affadavits, it instead elected not to do so. Rather, in a contravention of both the Federal Rules of Evidence and Federal Rules of Vivil Procedure, BLAG, in opposing Plaintiff’s motion for summary judgement, simply referenced a dozen assorted books and articles about techincal matters in psychology and sociology. The documents relied upon by BLAG related to matters about which it is clearly only appropriate for competent experts, not counsel for BLAG, to testify since counsel, with all due respect, simply do not have the requisite qualifications… to testify about such topics in a federal district court.

In short, he said, “Clement, you ain’t a psychology or sociology expert and you sure as hell can’t base your entire defense on a bunch of books I can’t even cross-examine, cracker ass cracker.”

Personally, we hope the judge does allow Clement to call expert witnesses and that Mrs. Srivastav is among them. She’s a good writer and quite an acrobatic logician, so it’d be fun to see her perform razzle-dazzle Chicago-style on the witness stand.

This is the same woman and the same organization that did not produce so much as a single witness for the Prop 8 trial, and then complained about the verdict once it came down.

Mindful mittens doesn’t want to get her paws dirty in court. She didn’t even show up for Patrick Leahey’s historic DOMA hearings either. Was she afraid she’d end up looking a fool like Focus on the Family did.

Please, please, please get her on the stand. We haven’t seen a good catfight in some time now.

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  • David Gervais

    Of the book material submitted, is Mrs. Srivastav the author of any of it? If so, it should be possible to subpoena her to explain what she wrote. The same would apply to any other identifiable author.

    However, the Judge might just throw out the defendant’s book quotes and rule on the actual evidence presented. This might work out well as you can’t introduce new evidence at the inevitable appeal level. (as I understand US law) This means a decision favouring Edie Windsor would be almost irreversible.

  • Michael

    In short, he said, “Clement, you ain’t a psychology or sociology expert and you sure as hell can’t base your entire defense on a bunch of books I can’t even cross-examine, cracker ass cracker.”


  • David Gervais

    BTW Daniel, what makes you think the two women would have a catfight? I can see how that is likely with Mrs. Srivastav, but Edie Windsor? I’m sure Ms. Windsor is much smarter and more dignified than that woman.

  • Pete n SFO

    While everyone makes fun of Gagme Mallagher, she & Brian Blow-me Brown, are wiping the floor with gay-inequality & fundraising themselves into Lifestyles of the Rich & Racist…

    As their own ad states (see Joe My God), they removed marriage in CA, then again in Maine, ousted Judges in Iowa and can point to several other ways in which they are WINNING… and all with their hands out for money.

    These blog-entries may feel good, but don’t kid yourself for a moment, the SCOTUS has a history of bad decisions. Why anyone feels overconfident that any of our second-class rights are for sure, is beyond me.


    Paul Clement: I, nor any other Gay person did not CHOOSE to be Gay. We had no more choice in being Gay than any other person has a choice in brown or blonde hair, eye color, skin color et. all…………You howeverdid choose to be a vile, disgusting, reprehensive, hate spewing, bigoted scumbag………….

    Maggot Gallagher: (we know you view these threads)You really need to get over your obsession with spewing hatred upon the Gays……..What is your issue? Is it that even though you are a fat ugly pig you are so vile that even the Gay boys in high school wouldn’t allow you to be their fag hag? Is it that you are so damm upset that your “husband” never seems to have time for you?? Instead he travels the world to bridge tournaments with another man??? Do you and Michelle Bachman have little pep talk calls late at night discussing why your husbands for some reason won’t fuck you????

  • Steve

    It will be interesting to see how this plays out. I as amazed to see web sites listed in the table of “authorities”. Federal judges ordinarily do not tolerate such nonsense. They like to see actual “authorities”, under oath.

    The important thing, though, is not the entertainment that would ensue from getting Maggie on the stand. The important thing is the outcome of the case. It is better to be boring and get it right, than to be entertaining and get it wrong.

  • Jim

    Interesting article, but could you please make it more apparent that you’re engaging in parodic paraphrase as opposed to actual quotes? It reflects poorly on yourself as a writer.

  • David Gervais

    Re: No. 7 · Jim
    I think Daniel has been clear which are his words and which are quoted.
    What could be made clearer is the source of the quote. It is under the words “a truly excellent brief”. This is a link goes to a site that has a copy of the court document.
    The document is clearly written and a compelling argument of the legal position.

    Aside to Daniel:
    It is usual to put the source of a block quote immediately after the quoted material, or in a footnote in the case of academic work.

  • David Gervais

    Ah! I see the parts you mean. You are of course right. Those paragraphs are written in the style of dialogue in a novel. It seems to me that we are back to the issue of whether Queerty is a news site or a Huff-Post style blog.

  • Shannon1981

    Lighten up, its a snark blog. Supposed to be dripping with parody and sarcasm. Hell, he even wrote in the voice of Gladys Kravitz once. Either learn the lingo or head over to Towleroad or Joe’s where its more straight forward.

  • Cam

    The plaintiffs have it right in this case. The one thing that none of these anti-gay folks can do is stand up under scrutiny.

    The real honest to goodness reason they don’t want gay marriage is that they are bigots, and they think gays are “Icky”.

    They don’t have valid reasons, and will do anything possible to avoid a direct answer. The lawyers are forcing them to state their reasons, and they are failing. Good for those attorneys.

  • Nice Sean (formerly Sean, and Sean from england.)

    Can we not use horrible pictures of people who are antigay? It makes us look petty.

  • Cam

    @Nice Sean (formerly Sean, and Sean from england.): said…

    “Can we not use horrible pictures of people who are antigay? It makes us look petty.”

    Gee, why don’t we also send them in money and ask for them to be on more news shows? That would REALLY not make us seem petty.

  • Abel

    Maggie and Brian KNOW their “evidence” won’t hold up in court. They’re pathetic, but they’re rich and successful by their own lights, so WTF?

  • Msbliss

    Glad you’re covering this important case. I’d echo David’s coments about a courtroom “cat fight” simply b/c two women are involved & note that both the plaintiff, Edie Windsor, & her attorney, Roberta Kaplan, are women so that constantly referring to the plaintiff as “he” is incorrect.

  • christopher di spirito

    What Paul Clement should do is just set out a large deli plate at the back of the court room. Before long, the smell of salami, Mortadella, cheeses and olives will waft through the air and into Maggie the Cow’s snout. She will rise as if under a hypnotic spell and head for the deli plate and start grazing.

  • MattGMD

    NOM has had some successes after ‘testilying’ before the legislators of a few states. Wonder what her record is in court cases? Judges are not as prone as politicians to buy into unsupported talking points. Apparently that so-called foundation that Maggie and her husband run out of their house (more likely a couple desk drawers) is financially worthwhile to justify the time she devotes to an issue in which she has no standing.

  • Steve

    Could Maggie even qualify as an expert witness? Sure, she has lobbied politicians and run political campaigns for a number of years, but that does not make one an expert. Does she hold any academic credential in any related field? Has she published articles about marriage in any recognized peer-reviewed journal? I don’t think so…. Political opinion is not the same as well-founded expert opinion.

    If is _not_ an “expert”, and she clearly does _not_ have first-hand knowledge of the facts of this specific case, they might have a tough time getting her testimony admitted.

  • FlopsyMopsyCT

    To Steve: Gallagher does actually has had a few law review articles published on the topic of same-sex marriage and other related topics. It’s interesting to note that while she has been published by some school law reviews, she herself is not formally legally educated. It should be also noted that, while law reviews do engage in a form of peer-reviewing, it generally comes after publication through rebuttal arguments made in subsequent articles by others. Most school reviews are headed by students and a couple faculty guides. Thus, there isn’t great scrutiny given to the arguments written out in the articles submitted. That has been my experience.

    The question of whether Gallagher would qualify as an expert in litigation is an interesting one. It really depends on what issue she would be testifying for/against. Quite frankly, this article confused me because I don’t know for what purpose Gallagher would be called to testify as an expert in this case. She’s written a number of books on marriage, and has certainly been the head of a couple lobby groups for traditional marriage. However, I don’t think these qualifications would necessarily make her an expert for purposes of the Windsor case. The issue there is the constitutionality of DOMA, an issue I don’t think Gallagher would be considered credible to testify for due to the absence of any legal or political background. She probably could testify to the issue of the “meaning of marriage” since she’s written a lot on the topic and has worked with organizations concerning such topics, if the case called for such testimony. I don’t think her expertise, whatever it is, would be particularly useful in Windsor.

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