Law firm drops de­fense of mar­riage case

The Washington Times Weekly - - Politics - BY CH­ERYL WETZSTEIN

The con­sti­tu­tional battle over fed­eral mar­riage laws took an­other twist April 25 when one of the coun­try’s best-known lawyers re­signed as part­ner af­ter his firm’s man­agers an­nounced they were drop­ping the po­lit­i­cally charged case.

In a move that Capi­tol Hill Repub­li­cans said re­flected pres­sure from ho­mo­sex­ual-rights groups, for­mer U.S. So­lic­i­tor Gen­eral Paul D. Cle­ment an­nounced that he was leav­ing Atlanta-based King & Spald­ing and join­ing Wash­ing­ton-based Ban­croft PLLC as a part­ner af­ter the firm pulled out of the con­tract to de­fend the con­sti­tu­tion­al­ity of the De­fense of Mar­riage Act (DOMA), which ef­fec­tively rules out ho­mo­sex­ual part­ner­ships in the fed­eral def­i­ni­tion of mar­riage.

Con­gres­sional Repub­li­cans vowed to de­fend the law, and hired King & Spald­ing, af­ter the Obama ad­min­is­tra­tion’s Jus­tice Depart­ment an­nounced in Fe­bru­ary that it would no longer de­fend DOMA in court against nearly a dozen law­suits seek­ing to over­turn it.

King & Spald­ing of­fi­cials blamed their with­drawal on poor “vet­ting” of the con­tract, but Mr. Cle­ment said he was quit­ting in part to de­fend the prin­ci­ple that even clients with po­lit­i­cally un­pop­u­lar stands de­served qual­ity legal rep­re­sen­ta­tion in court.

Con­gres­sional Repub­li­cans such as House Ad­min­is­tra­tion Com­mit­tee Chair­man Daniel E. Lun­gren, whose panel helped draft the $500,000 legal DOMA con­tract in April, said King & Spald­ing’s “cut-and-run ap­proach” stood in stark con­trast to Mr. Cle­ment’s “un­wa­ver­ing com­mit­ment to his clients and his ded­i­ca­tion to up­hold the law.”

“Less than one week af­ter the con­tract was ap­proved,” the Cal­i­for­nia Repub­li­can said, King & Spald­ing “buck­led un­der po­lit­i­cal pres­sure and bailed with lit­tle re­gard for their eth­i­cal and legal obli­ga­tions.”

House Speaker John A. Boehner, Ohio Repub­li­can, said through a spokesman that he was “dis­ap­pointed in the firm’s de­ci­sion and its care­less dis­re­gard for its re­spon­si­bil­i­ties to the House in this con­sti­tu­tional mat­ter.”

“At the same time, Mr. Cle­ment has demon­strated legal in­tegr ity, and we are grate­ful for his de­ci­sion to con­tinue rep­re­sent­ing the House,” Mr. Boehner said.

In his res­ig­na­tion letter to King & Spald­ing, where he worked since Novem­ber 2008, Mr. Cle­ment said his de­par­ture was, “of course, prompted by the firm’s de­ci­sion to with­draw as coun­sel” for the House lawmakers.

The client in the case was tech­ni­cally known as the “Bi­par­ti­san Legal Ad­vi­sory Group,” made up of the House’s top five elected lead­ers. The group re­cently voted 3-2 to de­fend DOMA in mul­ti­ple law­suits af­ter Mr. Obama with­drew his ef­forts to de­fend the law, with House Mi­nor­ity Leader Nancy Pelosi one of the two lawmakers vot­ing against the move.

Mrs. Pelosi, a Cal­i­for­nia Demo­crat who has long op­posed DOMA, said through a spokesman that she shared the concern of King & Spald­ing about what she called “the lack of trans­parency and accountability in the way this con­tract was signed.”

Mr. Cle­ment, a highly re­spected lawyer who has ar­gued be­fore the Supreme Court dozens of times, said his res­ig­na­tion was not based on his per­sonal views of the law but on the ployer hours af­ter the news broke.

“I think Ban­croft PLLC just bought it­self a world of pain,” John Aravo­sis wrote on Gay Amer­i­cablog. “Go get them!!!” wrote a blog­ger on Prop8­tri­al­tracker, af­ter post­ing Ban­croft’s Wash­ing­ton, D.C., ad­dress, phone num­bers and web­site ad­dress.

Jon David­son, legal di­rec­tor for Lambda Legal, one of the groups chal­leng­ing DOMA in court, said his or­ga­ni­za­tion was “very sur­prised and dis­ap­pointed when King & Spald­ing ac­cepted this as­sign­ment, be­cause they have been sup­port­ers

Conser va­tive groups ex­pressed as­ton­ish­ment that highly paid lawyers would sud­denly be­come finicky about which causes they de­fend. “It is a shock­ing rev­e­la­tion that King & Spald­ing would rather lose their most bril­liant and tal­ented Supreme Court lawyer than con­front a smear cam­paign by ho­mo­sex­ual ac­tivists,” said Tony Perkins, pres­i­dent of the Fam­ily Re­search Coun­cil.

prin­ci­ple that all sides were en­ti­tled to qual­ity rep­re­sen­ta­tion in court.

“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,” he wrote.

“De­fend­ing un­pop­u­lar po­si­tions is what lawyers do,” Mr. Cle­ment said. “I have im­mense fond­ness for my col­leagues, but in this in­stance, my loy­alty to the client and re­spect for the pro­fes­sion must come first.”

King & Spald­ing’s move was hailed by ho­mo­sex­ual-rights groups, who im­me­di­ately tar­geted Mr. Cle­ment’s new em- of [les­bian, gay, bi­sex­ual and trans­gen­der] equal­ity in the past.”

“I guess their sense of jus­tice got the bet­ter of them,” he added.

King & Spald­ing Chair­man Robert D. Hays Jr. con­firmed in a letter re­leased April 25 that his firm had “filed a mo­tion to with­draw” from the con­tract.

“Last week, we worked dili­gently through the process re­quired for with­drawal,” he wrote. “In re­view­ing this as­sign­ment fur­ther, I de­ter­mined that the process used for vet­ting this en­gage­ment was in­ad­e­quate. Ul­ti­mately, I am re­spon­si­ble for any mis­takes that oc­curred and apol- ogize for the chal­lenges this may have cre­ated.”

Mr. Cle­ment will now work with Ban­croft part­ners Viet D. Dinh, a for­mer U.S. as­sis­tant at­tor­ney gen­eral who teaches at Ge­orge­town Univer­sity Law Cen­ter, and H. Christo­pher Bar­tolo­mucci, who was as­so­ciate coun­sel to Pres­i­dent Ge­orge W. Bush from 2001 to 2003.

Con­ser­va­tive groups ex­pressed as­ton­ish­ment that highly paid lawyers would sud­denly be­come finicky about which causes they de­fend.

“It is a shock­ing rev­e­la­tion that King & Spald­ing would rather lose their most bril­liant and tal­ented Supreme Court lawyer than con­front a smear cam­paign by ho­mo­sex­ual ac­tivists,” said Tony Perkins, pres­i­dent of the Fam­ily Re­search Coun­cil.

King & Spald­ing was sub­jected to “a cam­paign of in­tim­i­da­tion, with threats from law schools and ac­tivist groups that ret­ri­bu­tion would fol­low if the firm con­tin­ued to de­fend the law,” fam­ily law spe­cial­ist Wil­liam C. Dun­can, di­rec­tor of the Mar­riage Law Foun­da­tion, wrote on Na­tional Re­view On­line.

DOMA was writ­ten in 1996 with the help of con­sti­tu­tional law spe­cial­ists, and was signed by Pres­i­dent Bill Clin­ton af­ter it passed over­whelm­ingly in both houses of Congress. DOMA de­fines mar­riage in fed­eral law as only the legal union of one man and one woman. It also tells states that they do not have to rec­og­nize other states’ same-sex unions.

In the past 15 years, DOMA has ripened into a white-hot con­tro­versy: As states and a few coun­tries be­gan le­gal­iz­ing same­sex unions, those couples have chafed at not be­ing treated as legally mar­ried couples un­der fed­eral law as well.

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