Law Firm Pulls Out of DOMA Defense; Attorney Quits

The law firm King and Spalding has withdrawn from the defense of the anti-gay 1996 federal law known as the "Defense of Marriage" Act (DOMA) following an outcry from the GLBT community and protests at the firm's office in Atlanta. But the lawyer who was to defend the measure in federal court, Paul Clement, has resigned from the firm, saying that the only "honorable course" is for him to go ahead with the defense, Politico reported on April 25.

DOMA denies gay and lesbian families federal recognition and empowers states to ignore marriages granted to same-sex couples in other jurisdictions. The Obama administration no longer defends DOMA in federal court because of Constitutional issues. A federal judge has ruled that part of DOMA violates Constitutional guarantees, and the Obama administration agrees.

There are currently nine suits against DOMA in federal courts. Republican congressional leaders are determined that the law should be defended in court, and took taken the unusual--and expensive--step of hiring a private attorney, Paul Clement, to do so.

Clement's firm was not only prepared to defend the law in federal court, but also to require that none of its employees be allowed to advocate in any way for the repeal of the anti-gay law. The contract's relevant paragraph stipulated, "partners and employees [of King and Spalding] who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation ... that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement," reported Metro Weekly on April 22.

Speaker John Boehner revealed that the House of Representatives had hired Paul Clement, who served George W. Bush as solicitor general and who is currently with the firm King & Spalding, to defend DOMA in federal court, Politico.com reported on April 18.

The head of a national anti-gay group praised the move.

"At last we have a legal eagle on this case who actually wants to win in court!"
declared Brian Brown of the National Organization for Marriage.

But GLBT equality advocates criticized King and Spalding for taking on the case, and level criticism as well at Congressional leaders for spending taxpayer money on hiring a private firm.

"DOMA inflicts a great cost on same-sex couples but now its defense is burdening taxpayers to the tune of $520 per hour," Joe Solmonese, the president of HRC, noted. "The firm of King & Spalding and their attorney Paul Clement should be ashamed at every penny earned in trying to justify discrimination against American families."

The contract called for a fee cap of half a million dollars, but also provided for further negotiations past that point. Critics said that the total costs of defending the law could easily add up to tens of millions.

House Speaker John Boehner revealed a plan to divert money away from the Justice Department in order to help pay the lawyers' fees.

"Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA," Boehner wrote to former Speaker of the House Nancy Pelosi. "It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA."

But in the wake of the publicity that the contract brought to the firm, along with an outcry from GLBT equality advocates, King and Spalding abruptly canceled their participation.

"Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal," stated the chair of the firm, Robert D. Hays. Jr. through a spokesperson, Politico reported.

"In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate," added Hays. "Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created."

But Clement indicated that he would be sticking with the plan to defend the law in court. Clement announced his resignation from the firm, Politico reported.

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters," Clement's letter of resignation read, according to the Politico article.

"Defending unpopular clients is what lawyers do," Clement's letter continued. "I recognized from the outset that this statute implicate very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Defending DOMA: Serving A Greater Good?

Clement's agreement to defend DOMA provoked a wave of controversy. An April 22 op-ed piece in the Los Angeles Times posited that defending the law served no socially useful purpose.

"In this case, there is no greater good, no cherished larger issue at stake; the only issue contested is discrimination," wrote Maya Rupert. "There is no venerable tradition of lawyers defending laws that single out certain groups for discrimination.

"DOMA forces the federal government to discriminate against same-sex married couples and to treat their families as unworthy of protection or respect," Rupert continued. "A law that serves only to designate some families as second-class citizens has no principled defense. Defending DOMA simply prolongs the harm to same-sex couples and their children. There is no countervailing good."

A separate Politico article reported that Clement plans to work for the law firm Bancroft PLLC, which is based in Washington, D.C.

GLBT equality advocacy group Equality Matters praised King and Spalding for withdrawing from the case.

"We commend the partners of King & Spalding for rightly recognizing that their participation in furthering discrimination against gay Americans was unacceptable," stated the group's head, Richard Socarides.

"All Americans deserve access to an attorney, but attorneys need to be held accountable for the clients they voluntarily decide to represent," Socarides added. "Furthermore, Speaker Boehner has an army of in-house legal talent at the House of Representatives who could ably represent his position in court. If he is serious about cutting the deficit he needs to look to his in-house council to represent him in these proceedings, instead of spending taxpayer dollars for a service already provided to his office."

"King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law," Solmonese said in an April 25 statement. "We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values.

"Speaker Boehner is likely to pursue continued defense of this odious law," Solmonese added. "However, law firms that value LGBT equality should remain committed to those values."

A national advocacy group for the rights of gay and lesbian families also spoke out in praise of King and Spalding.

"In America, every person deserves a defense, but not every position does," declared the founder and president of Freedom to Marry, Evan Wolfson in an April 25 statement.

"King & Spaulding has recognized what President Obama, the Department of Justice, and many members of Congress have joined Freedom to Marry in concluding: federal marriage discrimination and the so-called 'Defense of Marriage Act' are indefensible," Wolfson continued.

"Freedom to Marry commends the many voices within the firm and outside, including the Human Rights Campaign, who spoke up against firm's hasty and wrong-headed decision to take on the defense of discrimination," added Wolfson. "DOMA is an odious, oppressive law passed to exclude loving and committed couples from equal respect for their marriages; it cannot be defended without reliance on stereotypes and fears that do not stand up under the Constitution.

"The House leaders pushing this abuse of taxpayer money to find a hired gun to defend DOMA should follow King & Spaulding's lead and reconsider whether they really want to be on the side of unfairness and the wrong side of history," Wolfson went on to say.

Politico readers debated Clements' choice to part ways with his firm in order to defend DOMA in federal court.

"At first blush, I was going to strike out at Clement as a phony, desperate to place himself as the Atticus Finch of our time, when, in fact, his client is hardly the underdog," one commentator wrote. "However, after reading his letter, I do think he has shown just a tiny spark of integrity by resigning and maintaining his representation, even though his client's position I find abhorrent."

Added the commentator, "Clement is a zealot, and is no Atticus Finch, but his actions do have some honor attached to them, and it would be remiss to denigrate them here."

" 'Clement said he will join Bancroft PLLC, a small Washington-based firm that is home to former Bush Justice Department official Viet Dinh,' " one reader quoted from the Politico story. "And give the new firm a 1/2 billion dollars in taxpayer funds," the reader's remark continued. "For Clement, I think it has less to do with integrity than it has to do with guaranteed taxpayer money. I thought the Republicans were supposed to be big on fiscal conservatism... it appears all they really have is a social agenda."