The Weak Attacks Against the Defense of Marriage Act's New Defenders

By Andrew Cohen

The Human Rights Campaign's misguided case against Paul Clement's law firm ignores the basic tenets behind the counsel of law

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The Los Angeles Times's editorial writers have it right when they point out that the Human Rights Campaign has it wrong about Congress's decision to hire Paul Clement to defend the Defense of Marriage Act in court. Clement's fancy law firm has been hired by Republicans in the House of Representatives to pick up where the Justice Department left off when it decided a few months ago that a key section of the statute should no longer be defended by the government in pending DOMA cases wending their way through the federal courts.

Every client has a right to a lawyer. In a perfect world, every client can choose and pay for a lawyer, and defending the constitutionality of a federal statute (which with approximately 50 percent of all Americans still agree) is no disgrace. If I were Rep. John Boehner, the Speaker of the House, I would probably have chosen Clement, too, to take up the cause. The former U.S. Solicitor General is an excellent attorney and advocate, a conservative, and someone who is familiar with political cases and Supreme Court procedure. It's a no-brainer.

It is wrong when conservatives attack the patriotism of lawyers. And it is wrong when progressives attack the motives of law firms whose attorneys take on controversial cases.

Rather than attacking Clement's bona fides (which they reasonably can't), the folks at Human Rights Campaign, whose work on behalf of gay and lesbian rights has been dogged and at times even noble, seem particularly offended by the decision-makers at Clement's law firm, the Atlanta-based King & Spalding. The main charge is that the firm has a well-publicized "diversity" outreach program that runs contrary to the purpose of the Marriage Act. This, HRC contends, is a "gross violation" of the firm's "expressed values." It's an argument that proves too little by trying to prove too much. 

No law firm ought to be judged by any single client its lawyers choose to represent. And no individual lawyer should ever be judged by any single client. The sins (alleged or proven) against clients or causes do not inure to counsel. And any given lawyer's representation of a client does not necessarily reflect the lawyer's endorsement of her client's views or conduct. These are bedrock principles in our justice system. The leaders of HRC are smart people. They surely know this. And yet they continue to press their point.

Clement's law firm deserves praise for its diversity program. And the Defense of Marriage Act currently serves as a barrier to some of those values. So what? If every law firm in the country were to refuse work that conflicted with its institutional mores the practice of law would look very different indeed than it does today. For example, there are plenty of law firms which have laudably transitioned to "green" workplaces (or at least have tried to). Are those firms not supposed to take corporate clients whose subsidiaries emit greenhouse gases into the air?  

If HRC wants to complain about something here, it ought to complain about Rep. Boehner's dangerous threat to punish the Justice Department (by reducing its budget) for the Obama administration's policy shift on DOMA. Such a move violates separation of power principles and would undercut the rule of law. Or the HRC ought to call out the House for not candidly telling the American people just how much it will cost them in legal fees to have Clement and company on the case. Just $500,000? Through Supreme Court review? Please.

Instead, the ersatz Clement controversy reminds me of the disheartening story of Charles "Cully" Stimson. Remember him? He was the overzealous (and that's being charitable) Bush administration official who in 2007 urged a boycott of law firms whose lawyers were representing the terror law detainees at Guantanamo Bay. The Defense Department official then resigned under political pressure-- and rightly so. There is no place in government for such nonsense. But there is no place in political advocacy for it, either. 

It is wrong when conservatives attack the patriotism of lawyers. And it is wrong when progressives attack the motives of law firms whose attorneys take on controversial cases. As I have consistently written over the past nine months, there are plenty of legitimate legal reasons to think that the DOMA's dubious message of unequal rights for same-sex couples ultimately will fall at the Supreme Court. But that's no reason today to be so critical of the messenger House Republicans have chosen to argue otherwise.

Image credit: Wikimedia Commons

This article available online at:

http://www.theatlantic.com/politics/archive/2011/04/the-weak-attacks-against-the-defense-of-marriage-acts-new-defenders/237698/