PUTTING PRESSURE ON THOSE DEFENDING DOMA
May 2, 2011
On April 25, gay-rights advocates -- led by the Human Rights Campaign -- scored a victory after the HRC applied pressure on a law firm hired to defend the Defense of Marriage Act, which defines marriage as a union between a man and woman and denies federal benefits to same-sex partners. The firm fired its client. There are two reasons you should be outraged, no matter what your position is on DOMA.
One: Lawyers aren't supposed to dump cases -- it's called abandonment -- especially because of political pressure.
Attorney Paul Clement, who was solicitor general under President George W. Bush, resigned from King & Spalding over its decision so that he could continue to defend the 1996 law. In his resignation letter, Clement cited his "firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do."
George Washington University law professor Jonathan Turley has been a harsh critic of DOMA -- and he doesn't like what happened.
"The irony is, you wouldn't want a lawyer whom you could pressure to drop a client," Turley told me.
In a statement, K&S Chairman Robert Hays had explained the firm's decision to ditch the case as the result of "inadequate" vetting of the contract.
UC Berkeley School of Law professor Jesse Choper finds that troubling.
"If they didn't like the case, they shouldn't have taken it," Choper observed. But having taken the case, the firm had "a lawyer's obligation" to stick with it.
Two: In this country, everyone -- accused murderers, terrorists, you name it -- is entitled to representation in court. Unless, it now appears, you don't agree with the Human Rights Campaign.
When the news of the K&S contract came out, HRC boasted that it would send "informational letters" to K&S clients and to "top law schools informing them of K&S's decision to promote discrimination." The group's communications director, Fred Sainz, described the effort as an "educational" campaign in response to K&S's "business decision."
He was especially outraged because K&S had solicited a rating from the HRC for its record on LGBT issues. It's 95 out of 100 -- and still up on the K&S website. Sainz added that his group never expressed a judgment on the legal ethics of dropping a client, held "no hope" that its efforts would alter the firm's judgment and when the firm dropped the case, "it was a complete and total surprise to us."
Choper faulted gay-rights advocates for saying that opponents "don't have a right to litigate properly."
Sainz denies that charge. Yet he effectively admitted as much when he told me, "At the end of the day, I am fairly positive that law firms in the future will think twice before taking on these kinds of engagements because they know that we'll be watching."
Case closed. This is intimidation.
This is intolerance.
It is important to understand why a private law firm took the case. In February, after defending the law for two years, President Obama and Attorney General Eric Holder decided that the law was unconstitutional. In a blog, they explained that homosexuals are a "politically powerless" minority. Hence, the Department of Justice no longer would defend the law against legal challenges.
Now Holder doesn't want to defend it. It doesn't matter that, like a majority of senators and House members, Vice President Joe Biden voted for the bill. Or that Holder's old boss Bill Clinton signed it. Or that Holder himself defended DOMA for two years.
Congress then had the option of defending the law. Over the objections of some Democrats, Committee on House Administration Chairman Dan Lungren, R-Calif., signed a contract with Clement and his firm.
Thus began a campaign to discredit the deal as, in the words of House Democratic Leader Nancy Pelosi spokesman Drew Hammill, a "legal boondoggle" that spends "half a million dollars of taxpayer money to defend discrimination." Now you know what Pelosi deems to be a waste of taxpayer money -- defending a law passed by the body she once represented as speaker.
"Even though I'm a critic of DOMA, I think someone should defend it in court," Turley offered.
Well, Pelosi doesn't.
Lungren marveled that Pelosi would cede the authority of the House to the Department of Justice. As he sees it, it is "an affront to constitutional democracy" to deny "the people" an opportunity to see a law defended in court.
Gay rights activists argue that DOMA is unconstitutional. If they're so sure, why are they trying to prevent good lawyers from defending the 1996 law?
We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.