Are Lawyers Different?: Does the Defense of Marriage Act (DOMA) Deserve a Defense?

Several large gay rights organizations (e.g.) celebrated the decision of King & Spalding, a large law firm, to forgo work for the House of Representatives.  When the Obama administration declined to defend the

Atticus Finch (Gregory Peck) defends an unpopular client

constitutionality of the Defense of Marriage Act (DOMA), the House leadership enlisted the firm to provide a defense instead.

DOMA explicitly defined marriage as between one man and one woman, and relieved states and the federal government of the obligation to recognize other marriage formulations that states might decide to allow.  (Anyone who’s ever taken an American government class would wonder if this wasn’t an obvious violation of the “full faith and credit clause.)  Congress passed the law with large majorities in each house, and President Clinton signed the Act, triangulating the culture wars on the eve of his reelection campaign.

King & Spalding reconsidered taking the case amid a great deal of political pressure and the suggestion that this case might be costly in terms of its reputation and future work.  The Human Rights Campaign had contacted many of the firm’s clients, drawing attention to this other legal work, and suggesting that clients might exercise their leverage on the firm.  At the Washington Post, Greg Sargent reports:

…Fred Sainz, a spokesman for the Human Rights Campaign, shared new details about it. He confirmed to me that his group did indeed contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.

Former Solicitor General Paul D. Clement, the partner who was to take the lead on the case, criticized the decision, resigned from the firm, and announced that he would handle the case with another firm.   According to the Washington Post:

In a resignation letter released to the media, Clement said he felt compelled to resign — not because of his views on the legislation, which he did not disclose, but “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.”

He continued: “Much has been said about being on the right side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Attorneys make a commitment to an adversary system of justice, in which both sides benefit from strong and honest advocacy, with a judge or jury making decisions about the merits of a case.  And there is something heroic and difficult about lawyers taking on unpopular causes.  You’ll note the fictional Atticus Finch above, who faced social opprobrium to defend an unpopular client.

Novelists can load the dice, however, and make that client worthy–and innocent.  In real life, however, sometimes unpopular clients are unpopular for good reasons.  The ACLU took a great deal of flack for defending the right of Nazis to march in a neighborhood filled with survivors of German concentration camps.  And today lawyers endure serious hardships to represent people who might well be terrorists housed at Guantanamo Bay.  As I understand it, this is what lawyers do.

But Evan Wolfson, at Freedom to Marry, says that while clients deserve representation, all causes do not:

In America, every person deserves a defense, but not every position does.  King & Spaulding has recognized what President Obama, the Department of Justice, and many members of Congress have joined Freedom to Marry in concluding: federal marriage discrimination and the so-called ‘Defense of Marriage Act’ are indefensible.
Freedom to Marry commends the many voices within the firm and outside, including the Human Rights Campaign, who spoke up against the firm’s hasty and wrong-headed decision to take on the defense of discrimination.  DOMA is an odious, oppressive law passed to exclude loving and committed couples from equal respect for their marriages; it cannot be defended without reliance on stereotypes and fears that do not stand up under the Constitution.  The House leaders pushing this abuse of taxpayer money to find a hired gun to defend DOMA should follow King & Spaulding’s lead and reconsider whether they really want to be on the side of unfairness and the wrong side of history.

But Attorney General Eric Holder, who made the decision not to defend DOMA, has praised Clement, explaining, “I think he is doing that which lawyers do when we’re at our best.”

At Slate, Dahlia Lithwick laments the movement strategy of pressuring lawyers off particular cases, even as she excoriates DOMA:

What’s the difference between Liz Cheney’s attack on the Gitmo lawyers and the gay rights groups’ pressure on King & Spalding? One argument, advanced at the Baltimore Sun, is that this is the difference between criminal and civil proceedings; the Constitution guarantees a right to counsel in criminal trials. But no firm has to take a civil case. As a descriptive matter that’s true. DOMA has no “right” to be defended. But as a normative matter it sidesteps the real question: What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?

About David S. Meyer

Author and professor of Sociology and Political Science at the University of California, Irvine
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