As more leaks out about the King and Spalding decision to withdraw from defending DOMA for the House Republicans, it seems it may actually be about the discrimination itself, not about the constitutionality of the law, as I thought yesterday.
K&S has had a very progressive diversity stance, actively recruiting for gays and lesbians when hiring new lawyers; they have a diversity committee and domestic partner benefits; and they have done much pro bono work for the gay community. So you might argue that they were the very firm to take the case, because it would NOT be seen as just defending a lost cause for ideological reasons -- sort of like Nixon could go to China, where a more liberal president would have been suspect.
But this is not how it played out. There was reportedly "mayhem" within the firm, with threats of mass resignations from those who felt the firm would be betraying its principles. One of its major clients, the Coca-Cola Company, supposedly put pressure on them; the powerful Human Rights Campaign focused on the firm's clients and recruits, noting the hypocrisy of presenting oneself as a leader in gay causes, while working to harm gay families. There were threats of demonstrations.
On top of that, the coup d' etat: the contract with the House prohibited members of the law firm from engaging in any advocacy to "alter or amend" DOMA until the case is settled. This means that, for perhaps years, every lawyer in the firm -- including the gay and lesbian ones -- would be forbidden to speak or work against DOMA. This may have broken certain state laws and could be what the firm's chairman meant when he said their vetting had been inadequate.
Paul Clement's new firm, which was eager to take him in so he can continue representing the case, is more than happy to be associated with another conservative, high profile case. They will portray this as K&S bowing to political pressure from the gay community.
K&S will no doubt incur some tarnish from this, especially for "abandoning" a client. In his letter of resignation, Clement quoted the firm's giant presence Griffin Bell, Carter's Attorney General, as saying that a law firm is not required to take every case, but once you accept a client you do not abandon them.
But I think it will be tarnished more from taking the case in the first place than in bowing out when they looked more carefully at what it would do to their reputation and to their own internal relationships. In addition, they do have the more concrete issue of the gag order for all their lawyers on a highly controversial, hot topic.
All in all, I would say that this will move public opinion a notch closer to public acceptance of gay marriage, which is the ultimate goal. The trend is strongly in that direction all ready with polls recently showing a majority support for the first time; this will only speed it along, simply by calling attention to DOMA and its unfairness.
Ralph
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I think the accusations of violating the policy of never "abandoning" a client are misplaced. There is a difference when the client is accused of breaking a certain law; yes, he deserves expert defense, even if he is guilty. There, it's not a question of whether the law is right but of whether the client broke the law.
ReplyDeleteHere it is a question of the constitutionality of the law itself. And the law, if upheld -- which would be the outcome if they won the case -- has a direct and harmful effect on members of the law firm itself, as well as millions of Americans.
In addition, those gay lawyers in the firm would be prohibited from speaking out against DOMA for years while the case was in progress. They would be identified as members of K&S law firm but not allowed to say that they opposed the case their firm was defending.
I think that would be an unconscionable position for K&S to take.