A prominent law firm has withdrawn from an agreement to defend the federal Defense of Marriage Act following pressure from homosexual activist groups.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.”