Much has been written about King & Spalding withdrawing from representing the House of Representatives in defending the indefensible Defense of Marriage Act.
King & Spalding withdrew from the representation after it received a lot of negative criticism from clients and the public at large. The attorney leading the case, former Bush administration Solicitor General Paul Clement, resigned, and then took the case over to the firm of Bancroft PLLC, where he will continue to defend DOMA with other Bush administration attorneys. After King & Spalding withdrew, President Obama, U.S. Attorney General Eric Holder, and Supreme Court Justice Elena Kagan all made statements criticizing the circumstances of the withdrawal by King & Spalding, and supporting Clement for upholding what they deemed to be the finest traditions of the legal profession by representing an unpopular cause. They were wrong.
About what King & Spalding did: there is no doubt that their withdrawal was a very difficult decision with significant ramifications for the firm. We should all send a note of thanks, because their withdrawal sent a powerful message to our society that it is not acceptable to discriminate against same-sex couples, and that at least one very well-known law firm will not allow itself to be used to further discrimination against the LGBT community. Symbols are important, and what King & Spalding did was huge.
As for Paul Clement, he is, without question, an incredibly skilled attorney who is at the very top of the legal profession. But to suppose that his representation of the House is some noble act ignores the reality of this case and large firm legal practice. Law firms are businesses, and businesses are about making money. There are reports in the media that Clement earns an incredible $5 million per year. I cannot verify that number, but suffice it to say that firms only pay large salaries to attorneys who can bring in big clients that generate big fees. Simply put, in his current job, Clement’s role is that of a very well paid hired gun. Let me add what Clement is not: He is not a poorly paid public interest or pro-bono attorney trying to obtain justice for his indigent or disenfranchised minority client, as was the case when attorneys brought the case of Brown v. Board of Education to challenge school segregation and other civil rights cases with which we are all familiar; he is an extremely successful attorney representing the Republican-led House, one of the most powerful institutions in our nation.
In this representation, no one should pretend that Clement is doing anything other than accepting very large fees in exchange for using his Solicitor General aura and legal skills to advance the discriminatory agenda of a very wealthy and powerful client that is seeking to deny the fundamental right to marry to more than 9 million Americans. It’s American; it’s legal; and it’s even ethical; but there is nothing noble about furthering discrimination.
As for Obama, Holder and Kagan, they were flatly wrong, and what is most confounding about their comments is that there was no reason for them to comment at all. If they had to comment, why not acknowledge that King & Spalding made a difficult, albeit correct, decision? Maybe they felt the need to appear bi-partisan, but to what end?
I am pretty sure that none of the supporters of DOMA are going to change their minds about Obama, so what was to be gained? More importantly, their comments give legitimacy to Clement’s efforts to uphold DOMA. With allies like that, who needs enemies?
Would Obama, Kagan or Holder make the same comments if Clement were defending laws against interracial marriage, or laws banning the right of African Americans or Jews to marry? I sincerely doubt it.
Our job then, going forward, is to help educate the administration and our perceived allies about what is at stake in these cases, which is nothing less than our fundamental right to marriage, and through it, to be recognized as equal participants in our American society.