Law Firm Hired By House Of Representatives To Defend DOMA Backs Out

The law firm King & Spalding decided to drop the case defending the Defense of Marriage Act:

The Atlanta law firm King & Spalding on Monday filed a motion to withdraw from its participation in defending the Defense of Marriage Act, prompting the immediate resignation of high-profile partner Paul Clement.

The law firm had come under fire from gay rights groups when partner Clement agreed to defend the law for Republican leaders in the U.S. House of Representatives. The act defines marriage as only a union between a man and a woman.

“Last week we worked diligently through the process required for withdrawal,” Robert D. Hays Jr., the firm’s chairman said. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

Clement, the head of King & Spalding’s national appellate practice, was to be paid $520 an hour for his representation. He once served as U.S. solicitor general for President George W. Bush. The Obama administration has said it will no longer defend the law in court.

The Wall Street Journal correctly noted in an editorial entitled "Knave and Spalding":

Is it now so politically incorrect to oppose gay marriage that a white shoe law firm will throw over a client rather than defend a law signed by President Bill Clinton? Apparently so, after yesterday's show of invertebrate representation by King and Spalding, the giant Atlanta-based law firm.

King and Spalding dropped the House of Representatives as a client yesterday only days after agreeing to argue for the House in defending the constitutionality of the 1996 Defense of Marriage Act, or Doma. The jilting prompted the firm's lead attorney in the case, former U.S. Solicitor General Paul Clement, to resign from the firm in what we would call principled protest.

In a letter to King and Spalding Chairman Robert Hays, Mr. Clement explained that he felt obliged to resign out of a "firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do."

At least there's some honor among lawyers, if not at the top of King and Spalding. In his statement yesterday, Mr. Hays resorted to some spin that the firm had failed in properly "vetting" the House "engagement." But Mr. Clement's letter says "I would have never undertaken this matter unless I believed I had the full backing of the firm."

It's hard to believe such a prominent firm wasn't aware of the high profile of the House case. Speaker John Boehner had convened a bipartisan group to seek counsel to defend Doma after the White House reversed itself and said the Justice Department wouldn't do so. The House group reached out to several firms and chose King and Spalding last week.

The likely story here is that King and Spalding began to fear a political backlash after activists at the Human Rights Campaign launched a campaign to "educate" (read: intimidate) the firm's clients about "King and Spalding's decision to promote discrimination." Clients include Coca-Cola and other Fortune 500 giants that prefer to avoid hot-button social issues.

That's fair enough, but once a firm takes on a client it is the firmest of legal obligations to see a case through save for a clear conflict of interest. To drop a case under political pressure is especially unethical. Imagine the outcry if a firm of similar standing stopped defending Guantanamo detainees?

Whatever one thinks of Doma, it passed both houses of Congress with huge majorities, and Vice President Joe Biden was among 85 Senators who voted "aye." The law defines marriage as between a man and a woman and says states aren't obliged to honor gay marriages recognized in other states.

Social mores have changed in 15 years, but not so much that gay marriage should be imposed by judicial fiat in a way that further inflames the culture war. The Human Rights Campaign has every right to challenge Doma in court, but it does itself no honor by trying to deny that same right to Doma's supporters by harassing their legal counsel. As for King and Spalding, better not turn your back on its lawyers in a firefight.

In contrast, it is worth also pointing out that King & Spalding is willing to defend Guantanamo detainees, free of charge. Tweet