Let me hasten to make a few things clear. The Defense of Marriage Act, which bars the federal government from accepting same-sex marriages recognized by state law, is repugnant and, I believe, unconstitutional. The Obama Justice Department did the brave and correct thing in deciding it could no longer defend the law.
But strong-arming the lawyer to drop or avoid the unpopular client is not an acceptable tactic. This is not, or shouldn’t be, a left-right debate. It is true whether the lawyer is defending murderers on death row, Guantanamo detainees or a federal law — a law, it must be pointed out, that was passed by overwhelming congressional majorities and signed by a Democratic president. The Human Rights Campaign and its allies ought to remember: Not so long ago, firms were squeamish about taking on gay clients or causes.
Attorney General Eric Holder correctly compared the criticism of King & Spalding to attacks on Justice Department lawyers who had previously represented alleged terrorists. “The people who criticized our people here at the Justice Department were wrong then, as are the people who criticized Paul Clement for taking the representation that he’s going to continue,” Holder said, referring to the George W. Bush administration solicitor general who commendably quit King & Spalding rather than dropping the DOMA case.
The adversary system is premised on the notion that both sides deserve vigorous and effective advocacy in court. This carries the greatest force when an individual accused of a crime, however heinous, confronts the prosecutorial power of the state, but it is true in the civil setting as well. Indeed, one of the underpinnings of the Justice Department’s withdrawal from the case was the assurance that members of Congress who support the law would be able to make certain it enjoyed a capable defense. The case against DOMA ought to be won on the merits — not by knocking out, or scaring off, lawyers on the other side.
The Human Rights Campaign proudly disagrees. Fred Sainz, the group’s communications director, said it had an obligation to call out the firm for “aiding and abetting the defense of discrimination against millions of people.” It contacted King & Spalding clients to alert them to the firm’s representation and the conflict with its advertised commitment to gay rights. It was gearing up to make the case against King & Spalding to elite law students choosing among corporate firms.
Sainz noted that the firm previously sought the gay equivalent of the Good Housekeeping seal of approval from the Human Rights Campaign, obtaining a 95 percent rating on its corporate equality index. “Representing or defending a statute that is the equivalent of a declaration of war against gay and lesbian people is not consistent with marketing yourself as being good for gay and lesbian families,” Sainz told me.
The strongest argument for the Human Rights Campaign is to substitute race for sexual orientation and ask: Should lawyers who defended anti-miscegenation statutes or segregated schools have been vilified? Isn’t some representation beyond the pale? “If this case were about race or gender, no law firm in the country would have taken it,” Sainz said. “So why is it appropriate to make gay and lesbian families collateral damage?”
But the logical implication of Sainz’s argument is that cases such as Brown v. Board of Education or Loving v. Virginia (the ruling striking down bans on interracial marriage) get decided by default — literally. No lawyer, in his preferred world, would be willing to make the argument.
“I completely understand that people will not have liked this,” Sainz said. “But I can assure you there are a lot of law firms and companies that took notice of what happened and will think twice in the future about taking on a matter that is so clearly injurious to American families.”
Sainz cheers the chilling effect. I find it, well, chilling. I want to see DOMA struck down — after the courts hear the best possible argument in its defense.