News reports this morning indicate that King & Spalding — the law firm whose partner, former solicitor general Paul Clement, was slated to defend the Defense of Marriage Act — has decided to withdraw. This follows a campaign of intimidation with threats from law schools and activist groups that retribution would follow if the firm continued to defend the law. This tantrum and its seeming success tell us that many on the left believe they have a veto on the principle that everybody deserves to be represented in court. It also suggests that there are few limits on what gay marriage supporters will do to marginalize those with whom they disagree. It’s worth remembering, as Maggie Gallagher says, that this is what “marriage equality” means. Paul Clement’s principled stand, which Kathryn has noted, is a much-needed grown-up decision and a very powerful rebuke to the intimidators.
Neither of those articles cites any threats of retribution from any law school.
Reply to this commentLinkReport Abuse"Campaign of intimidation?" That is rich. King & Spalding is staffed by brilliant, powerful people. If both their clients and places where they recruit talent are upset by K&S's involvement in this matter, I am sure the partners are capable of thinking rationally, in a way that's best for business. Think about it - if you were shopping around for a law firm, and you found one you liked, would the fact that they also represented Planned Parenthood at all sway your decision to retain them?
To be honest, I do not understand this blog's fixation with discrediting the left's boycott strategies. Conservatives want the free market. To me, the very cornerstone of that that people should vote with their feet, and boycotts and social pressures are absolutely essential tools in that form of "regulation." I cannot take seriously the insinuation that business leaders are actually falling prey to the Big Ol' Meanies on the Left. Maybe, just maybe, this is a sound business decision for them. I imagine most of their clients bring in a lot more business than the House of Representatives does, and those clients preferences win.
This is a triumph of the market, and insulting the success here just looks like sour grapes because you don't like that the other side has more votes.
Reply to this commentLinkReport AbuseWhether it's union protests or gay rights boycotts, the National Review has never seen a left-leaning exercise of free speech rights that it won't brand a campaign of intimidation.
Reply to this commentLinkReport AbuseIt's really too bad.
If there are no lawyers willing to take the case, then one of the basic pillars our self-governance relies upon falls down.
And that is of course what the left needs, because they can't defend their case on honest grounds & they know it.
I wonder if anyone ever got punished for all those death threats against the legislators in Wisconsin?
Reply to this commentLinkReport AbuseI think it would have been rather hard for a law form which "was a national sponsor of the Lambda Legal Defense and Education Fund. In its 2007 "Achievements in Diversity" report, the firm boasted, "Among other programs aimed at diverse law students, King & Spalding is a national sponsor of Lambda Legal, provides pro bono work for Lambda, and sponsors the organization in New York and Atlanta..." and that boasted an HRC Corporate Equality Index score of 95% to be involved in this case without seriously affecting not just their bottom line but their internal collegiality.
Reply to this commentLinkReport AbuseGood point Incognito. And as I'm sure Mr. Duncan is aware, everyone has a right to counsel, but everyone doesn't have a right to EVERY counsel. Unlike a criminal case, there is no moral or ethical duty to advise in a civil case - and law firms decline representation ALL THE TIME for a variety of reasons. Economic, political and reputational reasons are perfectly valid. In this case, there were a lot of reasons for King & Spalding to decide against the representation. Not the least of which was Mr. Clement's agreeing to a firm-wide gag order on any partner or employee engaging in lobbying or advocacy for or against any legislation to alter or amend in any way DOMA. This was over-broad, unconscionable and illegal in many jurisdictions. Note that neither Mr. Clement nor Mr. Duncan try to defend - or even mention - this point. The mere fact of the representation forced LGBT and equality-minded King & Spalding attorneys and staff to support, directly or indirectly, discrimination they find repugnant. And by the terms of representation it prevented them from personal "advocacy" on a key civil rights issue of our time.
Now King & Spalding isn't taking sides in the case, and its attorneys and staff can speak out for or against DOMA legislation as they prefer. It is too bad King & Spalding arrived at the right decision after entering into the representation. But it is early in the representation, King & Spalding's withdrawal is harmless and the House of Representatives is a sophisticated party that will have no problem finding representation on this matter - indeed it already has, Mr. Clement at his new firm. The legal and ethical issues Mr. Clement highlights in his letter of resignation are more applicable in criminal cases, and are largely there to protect less powerful and unsophisticated clients. They just aren't relevant for this representation.
And it is a win-win situation, King & Spalding doesn't establish itself as a law firm that defends discrimination against legally-married same-s*x couples. And Mr. Clement gets to continue a representation that clearly means a lot to him (don't kid yourself, King & Spalding has withdrawn representation many times before without Mr. Clement resigning) and he gets to do so at a firm that is a better fit for him ideologically (unlike King & Spalding, Bancroft doesn't advertise a commitment to diversity and equal treatment for its LGBT employees - who likely know better to work there in the first place). Furthermore, there is no way King & Spalding could have provided the zealous advocacy required by the profession. Every word in Mr. Clement's briefs would have been scrutinized, and no doubt Mr. Clement would have found himself constrained in making the anti-gay arguments that are staples in these cases (same-s*x couples harm kids, LGBT's are pedophiles, history of moral disapprobation justifies unequal treatment, etc.) Now Mr. Clement can say anything and everything he feels is necessary to win his case.
Good job King & Spalding!
Reply to this commentLinkReport AbuseLinUSA - your comment makes no sense as there is a lawyer willing to take the case - Paul Clement. He did not back down. A lawyer is not a law firm. Lawyers can be motivated by different things than a law firm, who must make business decisions.
And really, if you believe there is a shortage of lawyers out there willing to represent the House of Representatives in an unpopular, high profile constitutional question, you clearly don't understand what motivates lawyers.
In any event, this is a civil matter, not a criminal one. There's no right to an attorney in a civil dispute, so I'm not sure what "basic pillar" is falling down here.
Reply to this commentLinkReport AbuseJust remember this event when these same leftist apologists wax poetic about the need for lawyers to represent the worst of the worst.
What motivates much of the left is hatred of America. Representing terrorists and vilifying those who would represent a majority of their fellow citizens is thus perfectly consistent.
Reply to this commentLinkReport AbuseYes, gay activists are bullies, using unfair tactics like threatening to discourage people from working for or employing King & Spaulding attorneys. The Founding Fathers would never have approved of using economic boycotts to try to discourage people from enforcing laws many consider unjust.
As a side note, I'm waiting for the NRO to condemn pro-life "bullies" and Tea Party activists who also attempt to use protest, both political and economic, to change public policy.
Reply to this commentLinkReport AbuseGriswel: the left doesn't "hate" America; obviously there are many people with valid positions contrary to yours, but it's irrational to say they "hate" America as an unvariagated group.
Reply to this commentLinkReport Abuse"What motivates much of the left is hatred of America. Representing terrorists and vilifying those who would represent a majority of their fellow citizens is thus perfectly consistent." - Griswel
Ignorant as this statement is, let me just point out that a majority of Americans now consistently poll as supporting same-gender marriage. Griswel's bloated ideology is both antiquated and in the minority.
Reply to this commentLinkReport AbuseFrom the HRC: “The goal is to send a message to all law firms and corporations that decisions have consequences. If you decide to suborn discrimination, then be prepared to explain why to the millions of fair-minded Americans.”
Translation: Being opposed to gay marriage will not be seen as simply holding an opposing viewpoint, rather, we will attack you personally as being someone who holds beliefs akin to racism. You can not even represent people who hold this view if you are an attorney, (whether you agree with your client's viewpoints or not) as we will shun and boycott you as well. There can be no debate on the actual issue, there is only our dogma.
Reply to this commentLinkReport AbuseAh, the tolerant religion of the left!
I wonder if HRC is now supporting Plural marriage? And if not, are they planning to "explain why to the millions of fair-minded Americans?"
Reply to this commentLinkReport Abuse"let me just point out that a majority of Americans now consistently poll as supporting same-gender marriage."
So it's already "consistently polling," is it? That was fast. I believe we're talking about one very recent poll. We could argue about the wording and methodology of that poll, but I do believe it is one. We have won the polls that count 30 to nothing.
Reply to this commentLinkReport AbuseI fail to see how any of the actions taken by HRC or any other pro-gay activist groups in this case are any different than those taken by pro-life activists, other than conservatives disagree with HRC. Pro-life activists (and their representatives) who do all in their power to, for example, prevent federal funding for abortion (even though it is currently legal) are doing the same thing: both groups are objecting to the use of taxpayer money in a way they find morally objectionable, but is still legal. And both pro-life and pro-gay groups have every right to use such economic and political maneuvering to try to oppose what they view as the implementation of an unfair, though legal, policy.
By the way, the "threats" and "intimidation" this article refers to in the links consist of gay rights groups threatening that they'll tell everyone that this law firm is voluntarily taking a case to uphold a law that many Americans dislike, and no longer allow the firm to brag about its high rating for being gay friendly without challenge. King & Spaulding have made all sorts of PR hay out of their being a firm that welcomes homos*xuals.
Reply to this commentLinkReport AbuseHonestly, what do you people here expect politically aware same-s*x advocates to do? Put King & Spaulding on their letterhead?
According to NRO's new definition of "threats" and "intimidation", if I discover Dairy Queen has stopped using real dairy in their ice cream and tell them if they go through with it, I'll tell everyone, and no longer invite them cater to my school's ice cream social, I am guilty of "intimidation."
Historico, while I am in favor of the use of boycotts, I don't see why any honest man should have to use them in the attempt to change the outcome of a judicial case.
The only reason anyone could have for wanting to thwart both sides of the case from getting a fair hearing in court is because they know they don't have a case that will win on its merits. Why else would they need to kneecap the other fellow's horse, unless they simply lack faith in their own?
Reply to this commentLinkReport AbuseLinUSA,
The groups who threatened to publicize King & Spaulding's role in volunteering to take this case for profit are not "kneecapping" anyone's ability to receive justice. This isn't a capital case, and the issue at hand is a law firm choosing to defend a controversial law for profit. This isn't about keeping a trial from being "fair." If a civil law is so unpopular that no law firm will accept the its defense, for profit, and an economic boycott would be THAT damaging, perhaps the law should be changed. DOMA partisans can take advantage of the free market and support any law firms who choose to take the DOMA case, again for profit, from the government.
Reply to this commentLinkReport AbuseIf there is a major litigation involving Planned Parenthood and abortion, and the House of Representatives hired a law firm to uphold the abortion rights vis a vis Roe v. Wade, I have a feeling there would be plenty of people at NRO who would support a negative-publicity campaign against a law firm that took a Planned Parenthood defense case, for profit, of its own volition, while simultaneously recruiting at Christian Universities under a banner which read: "Defenders of the Right to Life."
King & Spaulding were going to profit from defending DOMA, a law GLBT's and many other Americans oppose, while they have previously profited from great PR in the GLBT community as a gay-friendly legal firm. In short, they tried to have it both ways. This isn't about a "right" to a defense, and it isn't about keeping whatever "justice" DOMA is, from being served. DOMA is a national disgrace, and laws are changed when people use their power of the boycott and the ballot to make their voices heard. Any law firm that wants to help the real-life consequences of DOMA persist is naive if they think that the GLBT community won't make it suffer real-life economic consequences of that choice.
So let's get real: this isn't some sad story of a noble pro-family Atticus Finch bravely facing intimidation by a torch wielding gay mob. It's about a highly prominent and successful law firm that tried to make a buck doing the exact opposite of what they claim to stand for.
DOMA goes against everything a true conservative values: It limits states' rights, it limits the freedom of gays and lesbians, it weakens the families of said gays and lesbians, plus the defense of it wastes precious tax dollars. While the government must enforce its laws, I know of no requirement that it defend its laws in court.
Reply to this commentLinkReport Abuse"This tantrum and its seeming success tell us that many on the left believe they have a veto on the principle that everybody deserves to be represented in court."
EveryBODY does deserve representation irregardless of who they are (and I can't tell you how relieved I am that the right finally remembered this after a decade of championing the cause of disappearing americans like Padilla), however the DOMA is not a person. It's a law. Notice the constitution does not provide any required protections for a law. No public defenders. No 5th amendment rights. No 4th amendment rights. No Habeas Corpus rights. No right to a jury.
Because it's just a piece of paper, not a person.
Reply to this commentLinkReport AbuseSo historico supports the supression of free speech, because the people not speaking *might* be violent.
historico supported George Wallace because the 'damage' that might happen from integrating the schools.
historico supported slavery, because it was 'popular' in the southern states and the econimic damage from freeing the slaves was so great.
Just want to make sure here.
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