Former Bush Solicitor General Paul Clement, a partner at the law firm King and Spalding, was contracted by the House of Representatives to defend DOMA (the Defense of Marriage Act) in court. A few days later, K&S dropped the case. Clement resigned from K&S in order to continue defending DOMA.<\/p>\n
So why did K&S drop the case? We don’t actually know. We know that gay-rights group Human Rights Council (HRC) had loudly objected to K&S taking on DOMA’s defense, going so far as to contact some of K&S’s clients (including Coca-Cola, who some say<\/a> may have asked K&S to drop the case) and getting ready for a boycott<\/a>. <\/p>\n It also seems there was internal dissent within the firm; there were reports that the heads of K&S’s diversity committee hadn’t been consulted, and an unusually broad “gag rule<\/a>” in the contract forbade any <\/em>employee of K&S from expressing opposition to DOMA, even outside of the workplace. (This provision appears to be illegal <\/a>in some states.) And one of the heads of the firm said that the case hadn’t been adequately vetted before being accepted.<\/p>\n K&S<\/a> and HRC <\/a>have been subject to scorching criticism in the wake of all this, not just from opponents <\/a>of marriage equality, but also <\/a>from <\/a>supporters <\/a>of SSM<\/a>.<\/p>\n I’m sort of a fence-sitter on this one.<\/p>\n 1) Tactically, HRC going after K&S was a bad move. What was HRC hoping to accomplish? There was never a chance of leaving DOMA stuck with second-rate representation; even if Paul Clement hadn’t stuck with the case, there are other top-rank conservative lawyers who would have been happy to take the half-million-dollar case.<\/p>\n (The “gag order” was worth fighting against, but probably could have been renegotiated. If it turns out K&S withdrew from the case because Congress refused to budge on “the gag order,” then I’d entirely approve of K&S’s decision.)<\/p>\n 2) I don’t like the idea of boycotts limiting people’s (or Congress’) choice of lawyer or law firm. In close cases, the ability to retain a top-flight lawyer could make a difference; the outcome of a court case shouldn’t be determined even indirectly by boycott threats. Our court system is imperfect, but making boycotts part of the system makes it even worse. <\/p>\n And, again, HRC didn’t hurt DOMA’s chances at all. DOMA has powerful interests behind it, and Congress has $500,000 to throw around defending it. A culture of boycotting law firms could do more to harm the poor and the powerless than anyone else. It’s not hard to imagine the US Chamber of Commerce pressuring a law firm not to represent a small union, or a client like Lily Ledbetter. <\/p>\n 3) But I don’t primarily blame HRC. Blaming HRC for protesting <\/a>is like blaming a fish for swimming; protesting is what activist groups do<\/em>. I place most of the blame on K&S, which is a huge and powerful law firm, well able to stand up for themselves; having made the unwise decision to accept DOMA’s defense, they shouldn’t have allowed political pressure to sway them. (If<\/em> that is what swayed them…. oy!)<\/p>\n 4) Some of the criticisms of K&S, and of HRC, are overblown. Andrew Sullivan says that HRC is a “bully<\/a>,” for example; but it’s hard to see one of the nation’s most powerful law firms as a helpless wimpy kid that only a cowardly bully would pick a fight with. When you fight the well-heeled and powerful, you may or may not be right, but you’re not a bully.<\/p>\n I’ve heard several people talk about the constitutional right to a defense. But that’s criminal law; DOMA is civil law, and there’s no constitutional right to a lawyer in a civil case<\/a>. Nor is DOMA a person (or corporation) with constitutional rights. Nor was there any chance that DOMA would be undefended in Court.<\/p>\n 5) Frankly, what disturbs me most about this is the free speech issue of the House of Representatives negotiating a contract which exerts broadbased control over the political speech of private citizens in their non-work time.<\/p>\n 6) Boycotts don’t sit comfortably with free speech, for me. Boycotting a company because it mistreats employees, or because it commits crimes, makes sense to me. If we boycott Snoopy’s Pants Factory because they’re a sweatshop, we’re saying “treat your workers decently or we’ll drive you out of business.” That’s a reasonable, principled stand; companies with indecent labor conditions deserve <\/em>to be driven out of business. <\/p>\n But boycotting Snoopy’s Pants Factory because Snoopy supports political causes I disagree with? That’s saying “stop advocating for things I disagree with or we’ll drive you out of business.” That’s not a message I’m comfortable with.<\/p>\n When private citizens use economic pressure to shut people up that’s not technically <\/em>censorship. But it still goes against the ideal of free speech.<\/p>\n On the other hand, people have the right to decide where to spend their money — and where not <\/em>to spend their money. It’s not a simple issue<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" Former Bush Solicitor General Paul Clement, a partner at the law firm King and Spalding, was contracted by the House of Representatives to defend DOMA (the Defense of Marriage Act) in court. A few days later, K&S dropped the case. … Continue reading