A ‘Victory’ We Could Do Without

OK, so what have HRC, Georgia Equality, and other gay rights groups achieved by driving King & Spaulding off of defending the Defense of Marriage Act? (Here’s a good roundup.) Well, the same formidable lawyer, former Solicitor General Paul Clement, is still on the case, undeterred. He’ll be at a smaller firm, but he’ll also be a martyr, and he’ll have no trouble getting any resources he needs.

So maybe HRC et al. have succeeded in making the point that being anti-gay in today’s America comes at a cost, so think twice? That may be the lesson our side thinks it’s teaching, but the lesson a lot of lawyers may hear is: Don’t represent unpopular or controversial clients—including, next time around, gay ones. Obviously, the other side can use the same tactics against us; that is why minorities, especially, have a stake in a system where unpopular and controversial people can get top-flight legal representation.

What’s really going on here is not reflective, it’s reflexive. Activists found a weapon and used it and it worked. OK, that’s politics. I get that. Gay rights groups aren’t paid to make life easy for their opponents.

Here’s the thing, though: as gays emerge into effective majority status, the best and maybe only weapon the other side has left is the “homosexual bullies” narrative, in which they’re the oppressed minority, just trying to speak their mind and practice their religion, and we’re riding roughshod over their civil rights by trying to silence and intimidate them. We can’t stop the other side from flogging this narrative, but we can, and should, be cautious about even giving the appearance that the “gay bullies” narrative is true. If we look like we’re clobbering someone, we had better be accomplishing something worth the PR cost.

Just guessing, but I don’t think Paul Clement’s having been pushed to a smaller firm is going to change the Supreme Court’s judgment on DOMA. I don’t think it’s going to deter the other side from going to court. I don’t even think it will deprive the other side of good lawyers. It did show gays have some muscle. It didn’t show we’re smart about using it.

39 Comments for “A ‘Victory’ We Could Do Without”

  1. posted by Wilberforce on

    I agree it gives an opportunity for spin. But every one of our victories can be spun by the other side. Tough beans.
    If we can’t disprove the bullied conservative meme, with the mountains of evidence every day showing the violence and horrifying tactics of the other side, we don’t have as much muscle as you think.

  2. posted by John on

    I’m sorry, what? The conservative and religious right has spent goodness-knows-how-long *actually* being bullies and you’re saying that we should play with kiddie gloves for fear of being *perceived* as being bullies?

    For fear of delving into hyperbolic rhetoric, the founding father’s didn’t stop at sending strongly worded letters to England, they picked up guns and *fought*, and didn’t stop when they gave England a bloodied nose.

    • posted by chi on

      exactly – those people are going to have a negative perception of gays no matter what. people like that ought to be bullied / marginalized / whatever to the extent they seek to deprive gays of equal rights.

      lawyers choose to represent unpopular clients all of the time anyway. your worry is baseless.

  3. posted by Joel Wheeler on

    “that is why minorities, especially, have a stake in a system where unpopular and controversial people can get top-flight legal representation.”

    Reality check: Section 3 of DOMA is not a person. It is a piece of legislation, and probably an unconstitutional one at that. The “unpopular client” in this case is the U.S government, so you’ll forgive me if I don’t feel like it’s a vulnerable minority. If defense of this law is so important, let one of the legislators that voted for it come to its defense. Of course, that won’t be necessary, since, as you’ve noted, it already has a defender in Mr. Clement.

    King & Spaulding pulled out, at least in part, due to contractual overreach that stipulated a gag order for ALL K&S employees regarding DOMA. I don’t blame them. Law is business, after all, and we may have crossed the tipping point in the market—not the law—where defending anti-gay LEGISLATION—not individuals—is simply unprofitable and bad for business.

    Good.

    • posted by Wilberforce on

      I so hope you are right about the tipping point.

  4. posted by joe mondo on

    Every defendant deserves a defense. Every defendant. That includes the most zealous anti-gay person out there, regardless of the crime he or she is charged with.

    That’s to ensure that the innocent are not wrongly punished.

    But DOMA isn’t a defendant – in fact it’s rather the opposite. It can’t be imprisoned, fined or executed. It needs no defense.

    Gays have been bullied, harassed and denied the rights to which they are entitled. And that will not stand.

    • posted by John on

      So because DOMA is not a person it should not be defended? Is this because it is legislation or legislation you disagree with? If it’s either than what happens when a gay marriage bill is passed (I think at some point it will be)? If there is an attack on it as unconstitutional should there be no defense of it because it cannot be imprisoned, fined or executed? What about hate crime legislation? Or other legislation designed to protect certain classes of people should that not be defended because it is not a person?

      • posted by Pender on

        “So because DOMA is not a person it should not be defended?”

        I think it is just as immoral to defend DOMA as it would be to lobby to pass DOMA in the first place. Every human being deserves a defense, but the same is simply not true of political causes. If a major lobbying firm decided to accept the KKK as a major client, they would be rightly punished in the court of public opinion. I don’t know why this is any different, morally.

        • posted by FactCheck on

          Lawyers (like the ACLU) accept the KKK as a client all the time, because however despicable they are, they still have rights.

          Lawyers challenging anti-miscegenation laws and other forms of racism were no doubt unpopular. People certainly had the right not to take such cases, back in the day. But once a lawyer has taken a case, it is unethical to back out because that position is unpopular, and threatening people’s lawyers if they don’t back out threatens the integrity of our legal system.

          The distinction between defending a person and defending a law makes little sense.

          • posted by joe mondo on

            Any defendant accused of a crime – including the KKK – is entitled to legal defense.

            DOMA isn’t a defendant. What don’t you understand about that? The US House is not some indigent powerless person who might be wrongly punished.

            Furthermore, there are legitimate reasons to withdraw from a case, and K&S has taken the appropriate steps to do so.

      • posted by joe mondo on

        DOMA shouldn’t be defended because it is unconstitutional.

        There is no requirement that it be defended.

        That said, it will be defended and K&S’s withdrawal won’t stop that.

  5. posted by Liz on

    One is tempted to ask the Republicans in Congress who are obsessed with defending DOMA and in need of a top notch lawyer they trust; was Monica Goodling not available?

  6. posted by Craig Ranapia on

    “Gays have been bullied, harassed and denied the rights to which they are entitled. And that will not stand.”

    So, GLBT people stand up against bullying and harassment by a little bullying and harassment of their own — which is OK as long as your cause is righteous? Jonathan is right: Not ever lawyer standing up for our civil rights is a David Boies or Ted Olsen.

    • posted by joe mondo on

      I reject your description of what LGBT people have done here as bullying or harassment.

      • posted by Craig Ranapia on

        Why does that not surprise me, Mondo? :) I’m sure plenty on the right would be agreeing with you if Ted Olson & David Boies had been ordered by their employers to drop their challenge to Prop. 8. Not really the company I want to keep, but YMMV.

    • posted by Pender on

      I think there is something to be said for refusing to fight with one arm tied behind your back, and for seizing equality by any means necessary.

  7. posted by david on

    Hello, my name is david juan of Spain, gay rights are consevador-liberal, national patriots, we are in contact with EDL DIVISION GLBT, gay rights and most of Europe, anti-Islam, anti illegal immigration issues, for freedom and our nation, my web site, conlibertad.com, Greetings

  8. posted by alan on

    Jonathan,

    Reread that TPM article. It’s obviously slanted to give maximum influence to the HRC acts. While that slant is obviously helpful and desirable to HRC and , ironically enough, the RNC and social conservatives, it is not an accurate reflection of what happened here. Reread the article.

    K&S is huge, with over 800 attorneys. It has a strong pro-LGBT policy, and gay attorneys, including firm partners active in gay rights organizations. There was an internal revolt when these attorneys learned, not only that this cause was taken, but that the retention letter included a clause that no K&S attorney or employee of any kind, could engage in any anti-DOMA lobbying. Even a comment on a blog by a part-time firm courthouse runner in Atlanta would violate this agreement. This is a huge part of what led to the firm’s decision.

    Second, the firm’s big corporate clients, including Coke, called and expressed concern about keeping there business with a firm that would undertake such a case. This was not orchestrated by the HRC. And this also contributed in large part to the withdrawal of representation.

    Frankly, it seems HRC is up to its usual work of doing nothing effectively and then taking credit for change it didn’t wrought.

    And thank you, Jonathan, for buying into the narrative which is absolutely incorrect and calculated to give esteem and support to the enemies of equality.

    Be anti-bully by all sides all you want. But make sure that when you criticize our side, that that bullying is real. Thank you.

  9. posted by Kelly Young on

    Legal representation for the politically unpopular is critical for our system to work…but that has nothing to do with this. Yes, K&S blundered its decision to take-then-drop a client for non-legal reasons, but it had received a big business black-eye for taking on a case that so bothered its other clients. And its order that employees refrain from advocating repeal of DOMA was outrageous. That moved K&S from providing critical legal representation to providing political support to DOMA, which is far beyond its role as a provider of neutral legal services; it was meant to please a client. Moreover, this case hardly involved some politically unpopular defendant in need of representation to defend its rights. It was a $500k case for K&S. And the U.S. House, a popularly elected branch of government, is pretty much the definition of “politically popular.”

  10. posted by Houndentenor on

    This is laughable. The fact that HRC has been so inept and ineffective all these years ought to tell you that they had little to no influence on King & Spaulding. They are taking credit for something that was going to happen anyway. HRC has no clout (if they did they’d have gotten ENDA passed by now!) and as far as I can tell exists only to justify some big salaries and high profile social events. To think they could pressure a major law firm is ludicrous.

  11. posted by volpi on

    In fact the contract sais that any person working for the firm(not only the lawyers working for the case) should abstain from advocating the repeal of Doma.Is it normal? why were these conditions asked?

  12. posted by Pender on

    “Here’s the thing, though: as gays emerge into effective majority status, the best and maybe only weapon the other side has left is the “homosexual bullies” narrative, in which they’re the oppressed minority, just trying to speak their mind and practice their religion, and we’re riding roughshod over their civil rights by trying to silence and intimidate them.”

    I think this cuts both ways. On the one hand, it might convince some people that gays are bad. On the other hand, it might convince a lot of people to keep whatever anti-gay attitudes they have to themselves — and not to donate to NOM, or pass out campaign literature for the next Yes on 8, or vote against a nondiscrimination ordinance at the next city council meeting.

    Does anyone really have the impression that, say, black people are bullies for making racism socially unacceptable? If so, can anyone really argue that the “blacks are bullies” meme is more damaging to black people than the “racism is bad” norm is beneficial?

    • posted by Houndentenor on

      It reminds me of the “feminazi” slur Limbaugh et al. liked to throw around back in the 90s.

  13. posted by Pender on

    One other point, in response to this:

    “That may be the lesson our side thinks it’s teaching, but the lesson a lot of lawyers may hear is: Don’t represent unpopular or controversial clients—including, next time around, gay ones.”

    That ship has sailed. Anti-gay bigotry is now much more controversial than pro-gay advocacy. Discrimination against gays is much more controversial than commitment to nondiscrimination. And so on. So to the extent that this really does enforce a norm that law firms can’t represent controversial or unpopular clients, on balance, I think that probably cuts in our favor.

    Finally, anyone who disapprovingly notes that “everyone deserves a lawyer” fails to distinguish between PEOPLE and CAUSES. Representing a criminal defendant means representing a PERSON. Impact litigation nominally involves clients, but that’s just an awkward legal fiction to get around a procedural obstacle in the Constitution. Impact litigation is purely about a CAUSE. In that sense, it’s like lobbying — and I bet people would be a lot less willing to argue that every cause deserves the world’s best lobbyist, even the causes dedicated to fucking over a despised minority for no reason.

  14. posted by Wilberforce on

    Here we see the IGF writiers once again giving aid and comfort to our opponents. Or maybe, accoding to their logic, we should call off all boycotts, stop speaking out, and stop lobbying for our rights. We dont’ want to be seen as bullies. That is if anyone can recognize us though our many scars and bruises.
    What a laugh.
    But this is not the real issue. The real problem, which you’ll see as the case goes forward, is that we could be slammed by the SCOTUS. We have a crack legal team which will probably route Clement. But the Court may be hopelessly partisan, and we’d have had a better chance with them if we’d taken more advantage of public support for civil unions.
    Either way, win or loose, I hope our team from CA will argue this. Seeing them in action is a delight.

  15. posted by barry youngerman on

    If the law is so clearly unconstitutional or unjust, why do we need to suppress a fair debate before the Supremes? In any court case, the ideal is that both sides should have the best representation. Given that Olsen, a leading conservative Republican lawyer and former Solicitor-General, is representing the anti-DOMA side out of his own convictions, it seems churlish of the gay movement to try to prevent the pro-DOMA side from getting equivalent representation.

    There were always different types of people in the gay movement. Those who were fighting for fairness and simple humanity, like Jonathan Rauch, will naturally recoil from disgusting behavior such as powerful corporations using their economic power to dictate what other clients a law firm should take.

    That kind of behavior perpetuates the ugly, brutal tribalistic aspects of our political system. Public perceptions of gays have changed to a staggering degree in recent generations, without the use of mafia-type tactics.

    There were always opportunists in the movement, however. For them, “a place at the table” didn’t mean that ordinary gay individuals would be able to enjoy the love of their families and the respect of colleagues in their ordinary workplaces.

    To them it meant that already privileged elite individuals would get access to a still-higher level of overpaid jobs, and participate in ugly Washington power games. In any case, as the career of Roy Cohen shows, gays could always play that game if they wanted to.

    • posted by BobN on

      In any court case, the ideal is that both sides should have the best representation. Given that Olsen, a leading conservative Republican lawyer and former Solicitor-General, is representing the anti-DOMA side out of his own convictions, it seems churlish of the gay movement to try to prevent the pro-DOMA side from getting equivalent representation.

      Uh… Olsen is involved in the Prop 8 case, he has nothing to do with the DOMA cases.

      But I do like the idea of every cause deserving the best representation possible. When do you suppose the House is going to vote to subsidize the pro-gay side with tens of millions of dollars?

    • posted by Wilberforce on

      churlish , disgusting, powerful corporations , economic power , dictate, ugly, brutal tribalistic , mafia-type tactics, privileged elite, overpaid jobs, ugly Washington power games, Roy Cohen.
      Dude, you’re living in fantasy land. The vulgar name calling without evidence is hopelessly ignorant. And, if you only knew, it applies perfectly to the right wing, not to gay liberals. We’re gentle queens with integrity and a sense of fair play, which is why we even considered Rauch’s argument. So unlike our heartless opponents.
      Open a book.

  16. posted by Jay G. on

    What you and so many other commentators gnashing their teeth over K&S withdrawing “under pressure” seem to misunderstand is that LGBT advocates don’t mind DOMA being defended ( you’re not going to see any protests against the new firm), they just minded it being defended by THIS particular firm, which has a certain standing and reputation with the community.

    Also, as others have indicated, HRC’s role in this (and quite possibly the purported Coca-Cola influence) is probably overstated. It was almost certainly the internal pressure from partners and associates opposed to defending DOMA (effectively in their name) that determined the fate of this matter at the firm.

  17. posted by BobN on

    While we all argue over the suddenly all-powerful HRC — tremble at their awsomeness! — no one is asking the only relevant questions:

    WHO inserted the poison-pill gag clause and WHY?

    WHO at K&S approved the contract? Did Clement act alone and, if so, did he have any right to?

    I wonder how long the new reverence for the immense power of HRC will last… I give it a week before Sullivan and others go back to dissing them as irrelevant, useless toadies of the Clinton wing of the DNC.

    Heck, five days. Four?

  18. posted by Moorfield Storey Institute on

    I can’t say I’m as worried as Jonathan. First, I think the entire impact of a few press releases from the HRC is entirely overstated. The HRC didn’t actually get around to organizing anything. What caused the withdrawal is two things. First, they had a large number of employees who were threatening to quit. In other words, to keep the one case, they were going to lose a lot of employees that they actually wanted to keep. Second, other corporate customers were complaining as well, thus they were facing the loss of business from them. Third, but I suspect far less important at this point, is that students at law schools were saying they wouldn’t work for the company and threatening to cut off its ability to recruit new blood. But that wasn’t yet an issue. So I think the first two matters, which is also called the market at work, were the main factors involved.

  19. posted by Jonathan Rauch (a Leading Proponent of Same-Sex Marriage Rights) on the Paul Clement Matter | theConstitutional.org on

    [...] post is at Independent Gay Forum’s CultureWatch. The conclusion: Just guessing, but I don’t think Paul Clement’s having been pushed to a [...]

  20. posted by Jorge on

    Humm-hmm “people vs. causes, people vs. causes.”

    Uhhh, what the heck?

    I suppose then we shouldn’t complain when the conservative right recalls, impeaches, and boycotts over legal efforts to grant marriage equality in the states. After all, gay marriage isn’t a person, either. It’s just a cause.

    DOMA affects people in both directions. If it didn’t, there wouldn’t be a federal case about it, it wouldn’t have even been passed in the first place. The whole point is that the effect it has on the people who support it is negligible in comparison to the effect it has on gays. The people who support the law have the right to stand up in its defense and to be represented. The House of Representatives–the closest thing we have to a representative national body–is one entity that supports DOMA, and it, too, merits representation.

    People would like to pretend that nobody is hurt when gay rights causes win. That is a necessary belief for a movement like ours to have, but it is not true. Politics is about power and control, winners and losers. Not only is it not true, but pretending as such makes us flatfooted (as Rauch pointed out) to backlashes by people who are hurt.

    • posted by Houndentenor on

      In the documentary “Eyes on the Prize” a southern woman (c. 1965) complains about her “right” to be able to go to eat or shop with no black people in the store. (That’s not the word she used obviously.) There are always people who feel it’s their right to deny rights to other people. They anti-gay bigots will look as ridiculous 40 years from now as the racists do today.

  21. posted by Doug on

    Exactly who is ‘hurt’ when gay rights causes win? People may not like it if gay people have equal rights but they are not hurt in any meaningful sense of the word.

  22. posted by Jorge on

    You know you’re not gonna get the answer to that by asking on a gay website.

    • posted by inahandbasket on

      Jorge:

      “You know you’re not gonna get the answer to that by asking on a gay website.”

      That’s only because ND30 hasn’t shown up yet.

      • posted by Jorge on

        It was worth a try.

        In the documentary “Eyes on the Prize” a southern woman (c. 1965) complains about her “right” to be able to go to eat or shop with no black people in the store. (That’s not the word she used obviously.) There are always people who feel it’s their right to deny rights to other people. They anti-gay bigots will look as ridiculous 40 years from now as the racists do today.

        I think my point would be easier to explain using your example.

        There was a powerful social and psychological force that gave this Southern woman a strong discomfort with eating and shopping with black people around. It wasn’t just ideology. These racist beliefs have an effect on the lifeblood. That disease needed to be healed. That’s an easy thing to say about the civil rights movement. I think it is worth pointing out that people were willing to confront those feelings back then because they realized that the injustice those feelings helped to justify was too great to bear. You forget, Houdentenor, the realness of those fears and the need to deal with them in a way that affirmed equal rights and reconciliation. It took decades and is still happening.

        Today the racial fears that exist within people (thankfully quite minor in comparison) are not so easy to heal or dismiss with pleas toward freedom and equal rights. The country may be less willing to have an honest coversation about them.

        I consider the example you gave analogous to what I said about DOMA. I still would rather not give a direct example.

  23. posted by Roundup: All Sides Defending Paul Clement's Courage - NOM Blog on

    [...] Rauch on the Independent Gay Forum: "[King & Spalding dropping the defense] did show gays have some muscle. It didn’t show [...]

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