King & Spalding withdraws as counsel in gay-marriage case

Earlier this month, Paul Clement, a high-powered Washington partner in the Atlanta-based law firm King & Spalding, agreed to represent House Speaker John Boehner and the House of Representatives in their effort to defend the constitutionality of the anti-gay Defense of Marriage Act.

But King & Spalding, it seems, has had second thoughts. The law firm’s chairman, Robert Hays, announced today that the firm had made a mistake in accepting the case, explaining that the decision had not been properly vetted before the announcement.

In response, Clement resigned, effective immediately. (His resignation letter can be found here.) He did so “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in some quarters,” and said that he will continue to handle the case at another firm.

I can’t comment on the internal vetting process that occurred or didn’t occur at King & Spalding before Clement, who served as solicitor general under President Bush, agreed to take the case. But Clement is certainly right about the fundamental importance of even unpopular clients and causes being represented in court. Back in 2007 and 2010, you may recall, lawyers who volunteered to represent detainees at Guantanamo were attacked as unpatriotic in some quarters. So while I think Clement’s wrong and hope he loses, I’m glad he’s sticking with the case as a matter of principle.

That said, it’s stunning that blocking gay marriage is now considered such an unpopular cause that such a step was even necessary.

UPDATE at 6:20 p.m.: A commenter below points to a possible complicating factor. It appears that Clement, as a K&S partner, signed a contract with the House and Boehner in which he agreed to bar all firm employees, including those not in any way involved in the case, from publicly advocating the overturn of DOMA. It’s conceivable that those provisions of the contract stirred opposition among other K&S personnel, leading to the claim by its chairman that the engagement had not been properly vetted.

– Jay Bookman