The Human Rights Campaign is declaring victory in its campaign to intimidate Washington, DC law firm King & Spalding into withdrawing from its agreement to represent the House GOP leadership in defending the Defense of Marriage Act (DOMA). King & Spalding partner Paul Clement, the former Solicitor General under George W. Bush, resigned from the firm in order to continue the defense of DOMA he agreed to undertake.
LGBT activists cheered; others warned of a New McCarthyism.
While I think there is great merit in the argument that people and organizations deserve the best representation they can procure even when (or especially when) they are unpopular, I’m not quite sure a law that the executive branch won’t defend is entitled to the same rights.
Nevertheless, there is something deeply disturbing about targeting not just the counsel of the opposition (King & Spalding) but also asking corporate clients to stop doing business with that firm (e.g., Coca Cola), as suggested in this report:
gay rights organizations including the Human Rights Campaign and the group Georgia Equality…planned an aggressive ad campaign, direct communication with the firm’s clients, and a diminution of its Corporate Equality Index ranking—the metric HRC uses to track corporate support for gay rights.
I believe the constitutional case against DOMA (section 3, non-federal recognition of state-authorized same-sex marriages) is sound and will eventually win the day. But strong-arming the opposition’s legal defense team and going after the firm’s clients is deeply disturbing.
Update: From Politico:
Attorney General Eric Holder is coming to the defense of former Solicitor General Paul Clement, after gay rights advocates criticized his decision to take on the defense of the Defense of Marriage Act in court. . . .
“In taking on the representation—representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder said during a roundtable with reporters at the Justice Department. “That criticism, I think, was very misplaced.”
Also on the marriage front… The claim by social conservatives that U.S. District Judge Vaughn Walker’s ruling against California’s Proposition 8, which bans same-sex marriage, should be thrown out because Walker recently disclosed he is gay and in a relationship is deeply offensive. As the Wall Street Journal reports:
Erwin Chemerinsky, dean of the University of California, Irvine School of Law, said that no U.S. court had ever ruled that a judge’s personal identity was sufficient reason for disqualification. “I think it is offensive to say that a judge can’t hear this case because he is gay or lesbian,” he said. “By that reasoning, a black judge couldn’t have heard challenges to segregation law.”
10 Comments for “Is the Defense of the Defense of Marriage Act Defensible?”
posted by Doug on
A law firm is a business just like any other business. It has a reputation. If consumers don’t like the product they have every right to boycott and take their business elsewhere. Welcome to capitalism and the American Way.
posted by Wilberforce on
I think you’re being overly precious. If mainstream firms are vulnerable to such pressure, fine. Let a partisan firm defend. There’s no shortage of right wing legal talent. Indeed, the richest firms, not to mention think tanks and lobbyists, are financed by right wing, corporate money. And we are supposed to be sensitive that one firm dropped out, given the horrifying tactics our enemies routinely use against us? Please Mary.
And really, they could have dropped out from anticipating having their a–es handed to them in court. They might have noticed the crushing job our legal team did in CA.
The market has spoken, and isn’t that what you folk worship, except maybe when it speaks for us. But again, the right wing have vaste resources, and I’m sure they’ll find another powerhouse for this. Meanwhile, I’m not wasting any tears.
posted by Houndentenor on
“By that reasoning, a black judge couldn’t have heard challenges to segregation law.”
Now isn’t that interesting. Why would I assume that a WHITE justice would be impartial in a segregation case? Why is it assumed that straight, white, Judeo-Christian men are impartial while everyone else is suspect to conflicts of interest?
As for the rest, I wasn’t in favor of pressuring the firm but I was concerned when they ordered that no one working for the firm could advocate for same sex marriage. In a firm with a record of fairness to gay employees, that’s a problem.
posted by BobN on
I can’t believe how gullible everyone is being. HRC hadn’t even planned anything and K&S was already working to extricate itself from this contract last week.
We’ve been had. Again.
The only side benefit to this fiasco — the well orchestrated fiasco — is that all those whining about how “ineffective” and “useless” HRC is will, presumably, shut their mouths from now on. I’ll believe that when I see it.
posted by Wilberforce on
Another point that I’m trying to grasp: why is it ok for Boehner to spend half a million tax payer dollars to partisanly influence the judicial process, while even questioning the involvement of a private law firm is labeled McCarthyism?
Isn’t it Congress’ job to pass the laws, not rule on their constitutionality? If anything, Boehner’s involvement is the more suspect, and the double standard makes my head spin. We’re supposed to tie our hands behind our backs while public money is used against us in the courts?
But maybe it’s a case of conservative moles in the gay movement trying to sabotage us. I’m not saying it’s a conscious choice, but I have noticed that writers here often use rhetorical leaps to justify every hairbrained conservative talking point.
posted by Hunter on
The idea that Coca Cola succumbed to pressure from HRC on this is pretty funny — you can’t be serious.
I suspect that Clement pulled an end-run on the contract and when his partners found out about it, there was hell to pay, especially regarding the gag order, which is patently illegal in several states — New York and California among them — in which K&S has offices. Clients expressing their discomfort with the firm’s involvement in the case is just icing on the cake.
But it is enlightening to realize that no matter what small victories we gain, I can count on someone here opining that it just proves what bullies we are.
posted by Jorge on
While I think there is great merit in the argument that people and organizations deserve the best representation they can procure even when (or especially when) they are unpopular, I’m not quite sure a law that the executive branch won’t defend is entitled to the same rights.
I don’t have nearly as much trust in the good faith of the Obama administration. What is with granting it this high and mighty objective status of “The Executive Branch?” I’ll give the Obama administration the benefit of the doubt that it’s making a rational decision that is not entirely politically motivated (…), but that doesn’t mean swearing some kind of loyalty oath to its stances or credibility.
posted by Tom Jefferson on
Yes, The Defense of Marriage Act can and will be ‘defended’ in a court of law. Their are good and not-so-good legal arguments that a well trained/paid lawyer can use to oppose or defend just about any law or accusation.
One of the big legal challenges with anything to do with gay rights is that the federal courts still use ‘rational scrutiny’ when looking at government anti-gay discrimination. This is the lowest level of equal protection/due process scrutiny around and tends to impact the likely outcome of cases.
Yet, their has also been a clear trend (by the USSC) to strike down anti-gay laws even using this low rational review standard (1996 and 2003 being the big two). Thus the very weak standard does actually does actually have some value to it.
So, if you want to defend DOMA (all or in part) or oppose it, you will probably focus on whether or not this standard of review strikes down the law or not or somehow argue that a higher legal standard should be used or that a fundamental right is an stake here.
posted by Tom Jefferson on
Basically the USSC has said; government sponsored discrimination against a citizen due to race, ethnicity or religion will be looked at with strict scrutiny (which pretty much means it will be struck down).
If we are talking about sex discrimination, the court has used a lower standard, which strikes down some laws and upholds others. Same thing with a mental or a physical disability.
Then you basically have sexual orientation and political belief as two reasons for government sponsored discrimination that the court seems to be using rational review-scrutiny.
posted by Lymis on
Setting aside timelines and motivations and all the factual parts of this (purely for purpose of discussion), let’s look a little bit closer at the “threat” that gays and HRC posed that creates the “gays are bullies” idea:
HRC maintains an index of, essentially, gay-friendliness, based on criteria that it chooses, and publishes that index for its own purposes.
Companies what to be reflected positively on that list.
The “threat” involves telling companies that HRC’s criteria includes things like the business relationships that they have with companies that are actively working against gay rights. Going to, potentially, the Supreme Court to fight against the right to marry sure counts on that score.
So HRC is being “bullies” by updating this list? Hogwash.
Does anyone think that it would fly to call the NAACP bullies if they marked down a law firm that defended a similar anti-black law? Or any other watchdog group? That’s the whole purpose of the freaking list.