NRA Takes Aim at Law Firm That Pulled Out of DOMA Defense
The law firm King & Spalding backed away from defending the so-called "Defense of Marriage" Act (DOMA) in federal court following a withering barrage from the Human Rights Campaign and a storm of bad press in general. But now the firm is coming under fire from conservatives who question the ethics of dropping a client--including the National Rifle Association.
"We believe King & Spalding's decision is indefensible and raises serious concerns about its ability to be a reliable and effective advocate for any client facing potentially controversial litigation," the NRA informed the law firm in a letter saying that the gun rights group would no longer be using the firm's services.
The anti-gay law was signed in 1996 by then-President Bill Clinton. DOMA excludes same-sex families from any federal recognition, appropriating the right of states to define marriage for themselves. DOMA also expressly permits states to ignore marriages granted to gay and lesbian couples in other jurisdictions--a provision that has been deemed contrary to the United States Constitution.
Last year a federal judge agreed that DOMA violates the Constitution. Earlier this year, the Obama administration's Justice Department announced that the federal government would no longer defend DOMA in court because of the law's purported unconstitutionality.
At that point, Speaker of the House John Boehner revealed that the House would engage legal counsel from a private firm on behalf of the U.S. House of Representatives, at taxpayer expense. Boehner suggested diverting funds from the Justice Department to pay for the resulting attorney's fees. The House hired bush-era Solicitor General Paul Clement, of the firm King & Spalding.
But once it was caught up in a firestorm of negative press--with the HRC pointing out that the firm was seemingly acting contrary to its own anti-discrimination policies, and the press noting that the contract the firm had accepted from the House stipulated that no King & Spalding employee could support marriage equality causes--the law firm dropped the case.
In doing so, King & Spalding brought the wrath of the anti-gay right on its head, with the chair of the National Organization for Marriage, Maggie Gallagher, declaring that advocates for GLBT full legal equality were "trying to exclude [opposing viewpoints] from the public square."
"There is a big gap between elites and everyone else" on the issue of family parity, Gallagher told the New York Times, going on to say of pro-equality advocates, "Either you're with them or you're a hater."
But others question how valuable the rhetoric from anti-gay groups really is, the New York Times article noted.
"If you know that the only arguments that can be made for a position are discriminatory and harmful to real people, you should think about whether you should make them," said Evan Wolfson, who heads up family parity organization Freedom to Marry.
The article said that the firm's dropping of the case spoke to a more general shift in the culture, and suggested that it might be a watershed moment comparable to similar shifts regarding social attitudes about race and gender.
But conservatives see the firm having stepped away from the case as a capitulation, with Virginia Attorney General Kenneth Cuccinelli calling the move an "obsequious act of weakness," Reuters reported. Cuccinelli, like the NRA, said that he would no longer turn to the firm for representation. Reuters noted that it is uncertain if King & Spalding had represented the Virginia Attorney General in many instances.
A May 2 Reuters article noted that attorney Paul Clement successfully defended gun rights on the state level before the Supreme Court last year. Clement left King & Spalding in order to be able to represent the U.S. House in federal court, where DOMA faces multiple suits.
"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 informed the firm in a letter announcing his intention to leave.
"Defending unpopular clients is what lawyers do," Clement's letter continued. "I recognized from the outset that this statute implicates 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."
Others echoed similar sentiments, suggesting that the firm had abdicated a basic duty to represent a client's point of view in a court of law.
"The issue is not whether the DOMA is good or bad law," wrote radio commentator Neal Boortz in an op-ed published on April 29 in the Atlanta Journal-Constitution. "For my part, I cannot fathom how a same-sex couple's enjoying the legal rights of marriage would have any effect whatsoever on my life or marriage," Boortz continued.
"The issue is whether or not unpopular causes deserve the protections offered by our Constitution and our laws," Boortz went on. "This type of controversy most often arises when an attorney undertakes representation of a vile, widely despised and clearly guilty murderer, rapist or child molester. To their credit, criminal defense attorneys do not run from public opinion. They know that their ultimate function is to make the government--the only entity legally allowed to use force to deprive us of our property, our freedom or our lives--follow the letter of the law in prosecuting the criminal."
Boortz compared the duty of attorneys to promulgate the point of view of their clients in order to ensure a fair hearing to free speech.
"When a lawyer or law firm abandons a representation because of threats from clients, warnings of boycotts or a shift in public opinion, the fabric of our law is torn, and those who would tear down our legal system are emboldened," Boortz added, going on to predict that the firm's bowing out of the case would invite a blizzard of pressure tactics aimed at other law firms involved in controversial cases.
King & Spalding chair Robert D. Hays, Jr., issued a statement in which he said that the case had not been properly "vetted" before the firm agreed to hire on with the House of Representatives.
"In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate," Hays said through a spokesperson. "Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created."