It was no surprise when the House of Representatives defended DOMA. It was surprising that a big firm like King & Spalding (K&S) took the case. Despite how horrible Corporate America can be, as a whole it is generally more progressive in attitude than the United States government and many states. There are many reasons for this. Corporations are responsible to shareholders not constituents; shareholders care about money, constituents care about social issues.
Although corporations may be myopic when it comes to short-term costs like environmental protections, they see far into the future when it comes to social issues because of the money that can be generated by tapping into affluent communities with expandable incomes (i.e. large segments of the LGBT community.) Conversely, LGBT-led boycotts have been quite effective since the 1970’s when Florida orange growers learned the hard way that aligning with Anita Bryant was bad for business. Meanwhile the Southern Baptists failed when they boycotted of Disney for being too gay-friendly.
Furthermore, in the decades since Stonewall, more and more LGBT people have come out, and it turns out that they too are employees. Corporations often want to keep employees happy, particularly those in high-powered positions. Ergo, it is makes sense that Corporate America would as a whole be more gay-friendly than a government-run by politicians who need to win the bigot vote.
Big law firms like K&S are very much a part of Corporate America. These firms tend to be gay friendly because there are gay lawyers who work there and gay law students who aspire to work there. This is especially true in the major legal markets: New York, Los Angeles, San Francisco, Chicago, and Washington, DC. Furthermore, these law firms depend on corporations to stay in business–corporations that want to appear as gay-friendly as possible. That is why I was surprised when K&S took the case. Representing DOMA would surely bring a fallout, not just externally, but internally as well. The fallout was even more inevitable when it was leaked that all employees of K&S, regardless of whether they worked on the case or not, were unable to participate in any outside anti-DOMA activities. That clause was unusual to say the least.
But as surprised as I was when K&S took the case, I am flat-out shocked that they withdrew today. I cannot say I am displeased, but it is most certainly a self-inflicted wound. It flies in the face of legal ethics. If K&S didn’t want the case, they shouldn’t have taken it. Furthermore, while the LGBT community and its allies are cheering, the right-wing is fuming and calling this a new McCarthyism (ignoring their own support for the McCarthyism of the Tea Party, but that is neither here nor there.) Finally, as a result of the firm’s change of heart, Paul Clement, the K&S attorney working on the case, quit K&S and joined Bancroft PLLC, a DC boutique firm.
The loss of Paul Clement is substantial for K&S. Clement is a former Solicitor General, the government attorney who argues the position of the United States before the Supreme Court. (Actually there is an office of about 20 attorneys who argue such cases, but the Solicitor General leads the office and argues the most high-profile of these cases.) K&S hired Clement to build a competitive appellate and Supreme Court practice. Very few private attorneys argue regularly before the Supreme Court; Clement will be one of them no matter where he works. Now, not only has K&S lost Clement, it lost credibility before both court and client.
Clement wrote in his resignation letter:
My resignation is … prompted by the firm’s decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.
Instead, I resign out of the 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.
Perhaps Clement secretly believes that DOMA is a terrible law that should be struck down. Or maybe he believes it is a good law (Although it is telling that the firm he left for is not another large firm, but rather a small boutique made up lawyers who mostly served in the George W. Bush-era Justice Department.) Legal protocol suggests that by seeing the DOMA case through to the end, Clement is acting properly.
The comparisons to the Guantanamo cases that some on the right are suggesting however, are misguided. When the attorneys at big law firms took the Guantanamo cases, what they were doing was making sure that the law was applied equally. In other words, the basic assumption was that the Constitution grants the right to habeas corpus and due process and the government was not properly applying the law.
In the DOMA case, the issue is whether the law itself is constitutional. The Justice Department says no. Basic morality says no. And it would appear that the large law firms (and a substantial plurality if not majority of the legal community) also say no. The proper comparison is less with Guantanamo cases than with the NAACP’s Jim Crow challenges of the 1930’s, 40’s, and 50’s. And that brings us to John W. Davis.
Like Clement, Davis was a former Solicitor General. Unlike Clement, Davis was a politician and the Democratic Presidential nominee in 1924 (he lost to Calvin Coolidge.) Clement is a brilliant oral advocate, one of the finest, if not the finest, of his generation. Davis was one of the greatest of all time. He argued 140 cases before the Supreme Court. Very few have argued more (Daniel Webster comes to mind.)
After he left government, Davis became a corporate lawyer in New York, and the law firm he joined still bears his name. Davis continued to argue before the Supreme Court, many of his cases against the New Deal. However, his greatest claim to fame, or more perhaps infamy, was his representation of South Carolina in Briggs v. Elliott, one of the five cases that came to be collectively known as Brown v. Board of Education. Davis, a Southern Democrat by birth, let it be known that he believed segregation was morally and legally correct. He passionately argued this position (he allegedly teared up during his oral argument), and believed he had won, even though his opponent was Thurgood Marshall and the Supreme Court had been consistently struck down segregation laws.
The Davis comparison is apt because defending DOMA is akin to defending segregation. Both are unconstitutional and immoral forms of discrimination dressed in the trappings of law. Only politics kept Jim Crow laws in effect, and only politics keep DOMA alive now. Just as we look in horror at the Jim Crow South, so too will future generations look in horror at the homophobia of this era.
This is the situation that Clement and K&S found themselves in. Lawyer and firm are both aware of history and legacy. The tide is already turning against the foes of gay marriage whether those dinosaurs like it or not. Clement and K&S chose the wrong side of history, but K&S blanched and backed down. Clement did not, and I imagine that he will be remembered as John W. Davis is: a great lawyer who made a catastrophic decision.