A prominent law firm has withdrawn from an agreement to defend the
federal Defense of Marriage Act following pressure from homosexual
activist groups.
Former U.S. solicitor general Paul Clement has resigned
from the firm rather than abandon the case, warning that the incident
is a threat to the legal system.
“Defending unpopular decisions is what lawyers do,” Clement wrote to
Robert D. Hays, chairman of the Atlanta-based King & Spalding LLP.
He cited his “firmly held belief” that representation should not be
abandoned “because the client’s legal position is unpopular in certain
quarters.”
“The adversary system of justice depends on it, especially in cases
where the passions run high. Efforts to delegitimize any representation
for one side of a legal controversy are a profound threat to the rule of
law,” he said.
Brian Brown, president of the National Organization for Marriage,
said that Clement demonstrated that he is “a man of courage” who adheres
to “the highest standard of professional ethics.”
Brown charged that Clement’s former law firm showed “cowardice under fire.”
“The actions of King & Spalding would suggest that they believe
an accused murderer is entitled to a vigorous defense, but the
thousands-year old understanding of marriage is not, even though our
marriage law was passed with overwhelming bi-partisan majorities and
signed into law by President Clinton.”
The Defense of Marriage Act, enacted in 1996, recognizes marriage as a
union between a man and a woman in federal law. It also protects
individual states from being forced to recognize same-sex “marriages”
contracted in states which recognize the unions.
The Obama administration had defended the law in court for two years,
though critics said it did so in a half-hearted and ineffective manner.
In February the administration announced that it deemed the law
unconstitutional and would no longer defend it.
House Speaker John Boehner (R-Ohio) and other House Republicans
announced plans to defend the law and hired Clement and King &
Spalding as counsel.
House Democrats, homosexual organizations and other advocacy groups
attacked the firm for defending the law, the Wall Street Journal
reports.
Criticism took the form of ads against the law firm in legal
journals, letters to the firm’s clients, letters to law schools and an
e-mail and Twitter message campaign.
The Human Rights Campaign and its affiliates planned news conferences
and demonstrations in major cities attacking the law firm as defenders
of discrimination against homosexuals, the California Catholic Daily
reports.
Hays, the firm’s chairman, did not cite pressure from homosexual
advocacy groups. His statement said that the approval process for taking
on the case was inadequate. His comments could refer to a clause in the
contract with House Republicans that prohibited the firm’s lawyers from
any advocacy for or against bills that would change or repeal the
Defense of Marriage Act.
Legal experts told the New York Times that the clause is broader than
most contract restrictions and could have severely limited the
activities of the firm’s partners and employees.
Clement’s resignation letter said that if there were problems with
the vetting process the firm should fix the process, not drop the
representation. The attorney, who has not stated his personal opinion of
the marriage Act, said there was “no honorable course” for him other
than to complete his agreement to represent the House.
He has joined the law firm Bancroft PLLC, where he says he will continue to defend the federal law.
New York University School of Law professor Stephen Gillers told
National Public Radio that Clement was “entirely right” and the law firm
was “scared off by the prospect of becoming a pariah.”
He also told the
Times that the firm’s “timidity” will hurt “weak clients, poor clients
and despised clients.”
Richard Socarides, president of the homosexual advocacy group Equality Matters, disagreed.
“While it is sometimes appropriate for lawyers to represent unpopular
clients when an important principle is at issue, here the only
principle he wishes to defend is discrimination and second-class
citizenship for gay Americans,” he told the Times.
The National Organization for Marriage warned of the possible
precedent set by the law firm’s withdrawal under activist pressure.
“This tantrum and its seeming success tell us that many on the left
believe they have a veto on the principle that everybody deserves to be
represented in court. It also suggests that there are few limits on what
gay marriage supporters will do to marginalize those with whom they
disagree.”