King & Spalding was right to drop homophobic DOMA

Headquartered in Atlanta, King & Spalding is an old-fashioned, white-shoe, silk-stocking (and all those other adjectives that suggest “exclusive”) law firm. Its politics tend toward the moderately conservative, as is probably true of most white-shoe law firms. It has been home to the late Griffin Bell, who served as Attorney General in the administration of Jimmy Carter, and Deputy Attorney General Larry Thompson, who served in the administration of George W. Bush.
So it is big news, indeed, that King & Spalding has decided to back out of representing Congressional Republicans who wish to go to bat for the indefensible “Defense of Marriage Act” — a piece of flat-out bigoted nonsense now repudiated by one of its primary sponsors, former Republican Congressman Bob Barr. (Correction: Faced with lawsuits against it, the Obama administration has decided not to defend some parts of DOMA in court, believing a crucial section to be unconstitutional.) The act tries, basically, to prohibit same-sex marriage.
King & Spalding Chairman Robert Hays issued a statement saying (via Ben Smith):

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.

Just a few years ago, that sort of pro-DOMA brief would have been a no-brainer for a firm like King & Spalding. But same-sex marriage has become increasingly popular with Americans, who see no reason that gay and lesbian Americans should not be entitled to the full array of civil and human rights, including the right to marry. Apparently, K&S was stung by the harsh criticism it had begun to receive from gay rights activists and human rights groups.

However, the decision to drop the case has caused a rift in the firm and prompted the resignation of one of K&S’s high-profile partners, Paul Clement, who served as Solicitor General under George W. Bush. Clement would have been the lead lawyer defending DOMA in court. He said,

“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law,” Clement continues. “Much has been said about being on the wrong side of history. But being on the right or wrong side on the merits is a question for clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

I have a lot of sympathy for Clement’s argument that lawyers shouldn’t dump clients just because of “hostile criticism.” I have admiration for the attorneys who have defended accused terrorists at Guantanamo, in the face of vicious criticism from very powerful people.

But it is one thing for a law firm to represent an unpopular person accused of a crime, but another thing entirely to represent an idea that is bigoted, irrational and morally wrong. King & Spalding is to be admired for abandoning DOMA (even if it took public pressure to bring the firm around). The nation would have been much better off if good lawyers had stopped defending Southern racism much sooner than they did. Members of the bar have no obligation to represent morally unjust causes.
In defending DOMA, Clement is no Atticus Finch.

171 comments Add your comment

Awesome

April 25th, 2011
3:42 pm

Cynthia – thank you for this well worded article and for pointing out that DOMA is bigoted, irrational and morally wrong. I am happy that we live in a time when people like yourself stand up for those who are wronged!

stands for decibels

April 25th, 2011
3:43 pm

The nation would have been much better off if good lawyers had stopped defending Southern racism much sooner than they did.

can someone be a “good” lawyer if they defend a truly stupid/evil idea like Jim Crow or DOMA?

I can’t really square that circle.

Intown

April 25th, 2011
3:55 pm

Could not agree with you more.

granny godzilla

April 25th, 2011
3:56 pm

“The nation would have been much better off if good lawyers had stopped defending Southern racism much sooner than they did.”

AMEN!!!

Really?

April 25th, 2011
3:57 pm

Count on the tactic of delegitimizing the opposition to come back and, Ms. Tucker, you might not like it next time.
This is a sad day for America when a few made it dangerous to defend the law of land.

jconservative

April 25th, 2011
3:58 pm

DOMA is on its last leg Constitutionally.

But all are entitled to a defense in Court. I believe King & Spalding is wrong. They should have kept the case they orginally accepted.

As is written over the door of the US Supreme Court building: “Equal Justice Under Law”.

granny godzilla

April 25th, 2011
3:59 pm

“This is a sad day for America when a few made it dangerous to defend the law of land.”

Like say slavery? Indentured servitude? Child Labor? Womens property rights?

Knuckleheads

Peadawg

April 25th, 2011
4:01 pm

It’s amazing to see how many comments Jay has on his blog vs. Cynthia’s on the same subject. From reading the 2 blogs, I think they gave the Pulitzer to the wrong opinion columnist….

Paddy O

April 25th, 2011
4:02 pm

Morally wrong? Where springeth the concept of morality, and thus, what is the concept of morality and purpose of marriage?

JohnH

April 25th, 2011
4:04 pm

Well, thanks to King & Spalding for tipping their hand as to how to beat them in litigation.

Keep Up the Good Fight!

April 25th, 2011
4:04 pm

Let’s be very clear. The US DOJ is still defending the law. They are not defending DOMA against constitutionality claims because the DOJ as determined it to be unconstitutional

Paddy O

April 25th, 2011
4:05 pm

Also, remember the concept of unintended consequences (such as the DARE program doing excellent advertising to the illegal/illicit drug industry).

Paddy O

April 25th, 2011
4:06 pm

However, the equal protection clause seems to indicate that prohibiting gay marriage, and polygamy, to be unconstitutional.

B Cosby

April 25th, 2011
4:07 pm

“King & Spalding has decided that it will not represent Republicans” If they were democrats or liberals there would be an issue here for the ol’ bigot herself (CT). If they were white it would be even worse.

“I have admiration for the attorneys who have defended accused terrorists at Guantanamo, in the fact of vicious criticism from very powerful people.” CT, you are truly not loyal to the U.S.

Keep Up the Good Fight!

April 25th, 2011
4:14 pm

Cosby… why do you hate the US Constitution? You must hate America.

granny godzilla

April 25th, 2011
4:16 pm

“CT, you are truly not loyal to the U.S.”

No that’s probably the best example ever posted here of Granny’s Law of Politics #2 – The he who smealt it dealt it theorum.

I suspect B Cosby is as Patriotic an American as David Koresh.

Knuckleheads

WILLIAMG35

April 25th, 2011
4:27 pm

Ms Tucker,
As a black man who was reared in the south,I am dismayed that you would make a statement alluding to “southern racism”. You make it sound as if the south had the exclusive rights to racism. Such a statement is really, really annoying. I speak from much experience as I lived in N.Y.C. for thirty five years and that city can play the racism card with the best of them!

A Lumpkin Resident

April 25th, 2011
4:40 pm

Also, remember the concept of unintended consequences

If one cannot define marriage as being between one man and one woman, then one cannot define marriage. Any definition becomes arbitrary and (therefore) unconstitutional. 120 years ago, bigamy was outlawed in Utah based on the same “one man/one woman” argument. By all means, make an argument that is being made for the support of same-sex marriage that cannot also be made for bigamous or polyamorous marriages. Can’t think of one, can you?

Oh, that slope is slippery…

hobby

April 25th, 2011
4:42 pm

Granny defends everything CT says. Except when CT pomotes death panels………

just sayin

ctucker

April 25th, 2011
4:45 pm

Keep Up the Good Fight!@4:04, Thanks for making that important distinction. I’m amend my post

JC

April 25th, 2011
4:49 pm

Of course you can expand the definition of marriage to same-sex couples without abandoning the concept of marriage. We don’t allow men to marry their mothers or nieces; the argument that same-sex marriage will allow bigamists, etc. to marry is absurd. After all, the “traditional meaning” of “citizens” once excluded former slaves. Can’t all you “traditional marriage” people see that not all progress is bad?

Boz

April 25th, 2011
4:49 pm

So unpopular persons are entitled to a legal defense, but unpopular ideas are not?

How, Ms Tucker, do you propose to separate a person from his ideas? To a large extent, each of us is a product of our ideas.

Inevitably you will get round to the notion that persons who express unpopular ideas are not entitled to a legal defense, either. In this way, unpopular speech becomes criminalized, which I suppose is what you want.

Tom Middleton

April 25th, 2011
4:54 pm

Here’s hoping the South shall rise again, Cynthia, hopefully the right way this time – as true believers in the full equality and freedom for all people everywhere. Amen and Amen…women, too! :)

Keep Up the Good Fight!

April 25th, 2011
4:55 pm

Boz, there is not constitutional right to legal counsel in a non-criminal matter. We accepted daily that families in divorce may not have legal counsel, businesses have no right to legal counsel even if they cannot afford them (and they are required to have legal counsel in any court excluding magistrates court in Georgia), people may not have legal counsel to perform many civil matters and there is no consitutional obligation to provide that representation.

If someone kills because they are against abortion, they are entitled because of the US Constitution to an attorney to defend them on the criminal charges but not the civil charges. The attorneys do not have to defend on the grounds that abortion is “murder”.

Keep Up the Good Fight!

April 25th, 2011
4:56 pm

CT — glad to help!

hobby

April 25th, 2011
4:57 pm

I have been around ‘theater’ people for many years. I even played Atticus Finch! I have many gay friends and know same-sex couples of both sexes. Many of these claim to be ‘partners’. BUT—
I still believe that a legal mariage should be beween 1 man and 1 woman…..period

granny godzilla

April 25th, 2011
4:59 pm

I have a hobby.

In fact I have several.

I wonder if hobby has a granny?

hobby

April 25th, 2011
5:00 pm

I’ve had several

Really last word

April 25th, 2011
5:14 pm

For those who believe gay and lesbian Americans should be entitled to the full array of civil and human rights” . . . the truth of the matter is the “full array of civil and human rights” include the ability for a man and woman to reproduce . . and that my friend is not EVER possible for same sex “marriages”! And, who does GG & CT think they are to decide what is morally right and more than anybody else.

Tommy Maddox

April 25th, 2011
5:25 pm

The DOJ does not have the authority to decide whether something is unconstitutional; theirs is simply opinion dictated by policy. Constitutionality is determined by the Supreme Court.

Keep Up the Good Fight!

April 25th, 2011
5:31 pm

Maddox, don’t you hate eing wrong. All attorneys are members of the court and they have a legal duty not to prosecute cases that they do not believe can not be proven to the legal standard, they have a duty not to advance arguments that do not have merit and they have a duty not to raise consitutional arguments that do not have merit. The DOJ is a part of the executive branch not the Congress. The attorneys are also officers of the court.

Unlike the distortion of the Bush years, the DOJ is not to act willy nilly for the President or the Congress. They are suppose to perform the duties as officers of the Court.

joseph

April 25th, 2011
5:31 pm

For people like jconservative and really?…. the firm had no choice but to back out of the agreement that Clement signed for King and Spalding on April 14th on the firm’s behalf…
The agreement put a gag order on all employees saying they could only support The Respect for Marriage ACT that Boehner is going after…
The agreement would bar anyone, even those not working on the case from expressing their own opinions….or doing any support for the overturn of DOMA, even when not at work…

Would you like to have your right to free speech taken away…ANY OF YOU….

PAUL CLEMENT is the person that drew up this contract, violating the free speech of anyone in his firm….
King and Spalding wasn’t wrong… it had a rogue lawyer who thought he could tell his entire firm what they could or could not say…

Know the facts or just SHUT UP.

Richard

April 25th, 2011
5:32 pm

Sorry CT, I could not disagree with you more on this one. Every accused person has the right to be represented by council, and every law that comes under attack should have someone defending the merits.

DOMA is an indefensible law. But that’s my opinion. In this country, both sides have a right to be heard. It didn’t take courage for K&S to drop the case. Courage would have been fighting it.

joseph

April 25th, 2011
5:34 pm

richard,
it takes courage to support your first amendment, right?

Tom Middleton

April 25th, 2011
5:35 pm

Really last word@5:14pm…

So are all those couples in America who DON’T reproduce, guilty of being anti-constitution? Isn’t it possible for couples to be in love and married without having or even wanting children? If this isn’t one of your rights, Really, then you don’t know what freedom is all about! Try again…

Boz

April 25th, 2011
5:37 pm

Keep up the Good Fight– I did not say or even imply that constitutional rights are at issue here. I was making a moral and ethical argument, not a legal argument. So I’ll put it more clearly. Ms Tucker’s desired end is for DOMA to be overturned and for same-sex marriage to legalized, by default if possible. It is therefore convenient to ensure that a defense of DOMA, if there has to be one at all, is as ineffective as possible. To justify this, she makes the statement that unpopular ideas deserve no legal defense and that attempts to deprive them of a defense are acceptable–in fact, praiseworthy. And that is an amoral position–but it’s not troubling to those of you on the left, because your guiding principle–in fact your only principle–is that the end justifies the means.

Tommy Maddox

April 25th, 2011
5:44 pm

“…they have a legal duty not to prosecute cases that they do not believe…” Stop at that point. Your use of the word “BELIEVE” proves my point – a policy decision. When is the last time young one that the constitutionality of a law was ruled upon by the lawyers? In my experience, it’s always been the Judges doing the ruling.

Occasionally, try to peek out of that cubicle. And yes, we should all hate “eing” wrong.

Keep Up the Good Fight!

April 25th, 2011
6:12 pm

Maddox, the constitutionality of laws are ruled upon often by the Justice Dept as well as actions taken pursuant to law. Look up John Yee sometime. Here is a list of cases where the Presdient and the DOJ did not defend the constutionality of a federal law.

I guess this is explained by the fact you called me young one. If I am young, you’ve got to be senile. :D

Funny that you do not think that the states that are challenging the constitutionality of ACA do not have a duty to uphold the federal law.

MountainMan

April 25th, 2011
6:22 pm

Keep, such as the Black Panther voting case that DOJ decided not to prosecute. To say that DOJ under Obama is not political is a joke.

Tommy Maddox

April 25th, 2011
6:24 pm

Yep – ya gotta be young, ignorant, or down right stupid if you don’t know who rules whether a law is unconstitutional [let alone know the color of the USCA].

You Keep simply fall in the “Loud Mouth behind the Moniker” type.

Tommy Maddox

April 25th, 2011
6:29 pm

“Funny that you do not think that the states that are challenging the constitutionality of ACA do not have a duty to uphold the federal law.”

Would that be because the the constitutionality of ACA or lack thereof was ruled upon in those States’ favor by a FEDERAL TRIAL JUDGE?

Keep Up the Good Fight!

April 25th, 2011
6:35 pm

Maddox…its also been upheld by federal judges. But the fact is that to challenge it, state attorney’s generals made their own determination as to constitutionality

And Maddox, you have to be senile if you are still using volumes of the USC or the USCA to look up laws.

Keep Up the Good Fight!

April 25th, 2011
6:36 pm

mountain man… dont you mean the Bush DOJ which decided not to prosecute? Faxcts…they are a good thing

Tommy Maddox

April 25th, 2011
6:38 pm

You keep trying.

Keep Up the Good Fight!

April 25th, 2011
6:47 pm

Maddox…I notice you ignored the cases. Sorry pal, you’re claim fails so you have to resort to childishness.

Jim Hale

April 25th, 2011
6:48 pm

A generation ago, gay behavior was illegal in most states and denounced in college social science textbooks as abnormal behavior.
How is it possible that “gay marriage” (itself a contradiction in terms) is now to be hailed by all as a fundamental right?
Because, far from being part of a put-upon, persecuted minority, gay advocates are now well-placed, hysterical thugs….whose brown-booted tactics seek to cower all who even hint of disagreement.
It may be true that condemnation of gay behavior was an example of self-righteousness leading to abusive behavior.
But today’s gay approval movement (it is not a civil rights movement), proves that guilt breeds hate just as surely as any other human frailty/feeling.

Billybob

April 25th, 2011
7:04 pm

Libs like you care sooooooo much tucker, except for bill clinton, i guess, since this was his puppy. Is clinton a homophobic lib? I’ll wait for your typical non-answer to any tough questions……..

Buster Collins

April 25th, 2011
7:12 pm

Why should you care, Tuck? You don’t believe in marriage anyway.

kayaker 71

April 25th, 2011
7:17 pm

Why in the hell should I be vilified and demeaned because I feel that marriage should be between one man and one woman? Why am I some kind of demon because I don’t particularly like gays or their lifestyle? Why am I a racist because I do not condone the behavior of certain segments of the black community? Are these just names that we make up to call each other when someone doesn’t agree with that person’s opinion? Last time I heard, it is a free country and we are able to express our opinions freely and without reservation as long as we do not break the law or liable someone. This politically correct crap is beyond belief. This law firm has the right to do anything that they damn well please and run their business as they see fit. And we have no right to tell them otherwise.

Straight Talk

April 25th, 2011
7:18 pm

So freedom of speech applies only to those who support liberal causes. Only politically correct speech is permitted and only politically correct speech and association is allowed. This is a sad day for all of us – no matter our individual position on homosexual unions. We have become a nation where those who should the loudest and are joined by the support of the press [folks like Cynthia Tucker] get their way. We live in nation of laws not men. If we don’t like a law, then we work to get it changed. At least that was the way our country was founded…not on loudly screaming folks getting their way like a small child pitching a tantrum the way it seems to be working now. We give criminals a lawyer…yet won’t allow a law firm to defend an existing law without those who disagree with the law vilifying the firm. Shame on them…and double shame on King & Spalding!