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Report: DOMA Law Firm Backs Out

Jim Burroway

April 25th, 2011

Politico’s Ben Smith says that King & Sanders, the law firm retained by House Speaker John Boehner (R-OH) to represent the House in defending the Defense of Marriage Act in federal court, is extricating itself from its contact. K&S Chairman Robert D. Hays, Jr. issued a statement through its spokesman:

Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

K&S Partner Paul Clement was to lead the defense in the case. It’s not clear exactly which issues didn’t pass muster with the Chairman. But given what we’ve learned about the blanket gag order imposed on all K&S employees barring all advocacy for DOMA’s legislative repeal (an issue which is not germane to the case itself), it does appear that the contract was very poorly vetted.

UPDATE: Clement has announced his resignation from K&S, and will  join Bancroft PLLC, a small Washington-based firm with former Bush Justice Department official Viet Dinh. I would not be surprised to encounter another announcement saying Bancroft will take up the case instead.

Comments

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Bernie
April 25th, 2011 | LINK

Is it truly a matter of of poor vetting, or is it, “Hey, we are not going to lose our reputation, when we lose this case in front of SCOTUS.”

Bearchewtoy75
April 25th, 2011 | LINK

“vetting this engagement was inadequate”

Is that Lawyernese for “we can’t win”?

Curt
April 25th, 2011 | LINK

Gratifying. I am so glad the HRC took this approach. The multi-faceted approach worked. Reminds me of the DADT success. Go after the opposition from all sides.

enough already
April 25th, 2011 | LINK

Cue up the 1001 smallest violins, I just painted my face orange and feel a good cry coming on.
Hope my makeup doesn’t run.

daftpunkydavid
April 25th, 2011 | LINK

someone please tell me what was accomplished by this? doma will still be defended in court by clement. so what now??

cooner
April 25th, 2011 | LINK

daftpunkydavid, as I understand it from reading some other editorials, having a major law firm take on the case gave it more legitimacy than it deserves.

Part of the progress of civil rights is reaching a point where reputable people or organizations aren’t willing to stake their reputation on defending discrimination anymore.

andrewdb
April 25th, 2011 | LINK

The name of the firm is King & _Spalding_.

While I like making the defense of DOMA as difficult as possible, remember the uproar when a Bush administration official suggested there was something wrong with major law firms doing pro bono defense work for the GITMO folks, and those firms should be shunned? What this says it that sort of thing is now just fine. I don’t think that is a good thing.

Other Fred in the UK
April 25th, 2011 | LINK

Surely everyone deserves a lawyer, even a branch of the Federal government? Generally speaking, in a legal dispute, one side or other is going to loose. Loosing a case, having made a decent argument should in no way tarnish the reputation of an individual lawyer or a law-firm.

My suspicion is that the lack of adequate vetting relates to either the firms charges relative to the amount of legal work likely to be required, the blanket gag order or the client’s demands on how the case is defended. I would guess that an impartial lawyer would advise defending the case on fairly narrow legal grounds i.e. that Congress was within its rights in enacting DOMA. I would also guess that Republican politicians would prefer a full-throated defence of the moral correctness of the law, not accepting any other side’s arguments regarding harm caused. After all, what is the point, politically speaking, of defending a law if one is not publicly seen to defend it?

On the other hand, that is all guess work. I suspect that the actual reason for King & Saunders extracting themselves from the case will leak-out sooner or later.

enough already
April 25th, 2011 | LINK

Must we not distinguish between civil and criminal law?

DOMA is a Christian attack on human and civil rights of gays.

It is not, however, criminal law.

Therefore, there is no “right” in US law to demand the assistance of a lawyer in defending this vile piece of hatred and expression of contempt towards us.

Any lawyer defending this placing himself on the same level of vile filth as the Christians who wrote it.

Cooner
April 25th, 2011 | LINK

andrewdb and other fred,

The American legal system requires that every person deserves a defense. A law, an idea, or a policy is not a person.

Consider it this way: A person accused of a crime and facing imprisonment, fines, and public ignominy gets his or her chance to disprove their guilt beyond reasonable doubt.

Despite what NOM and their ilk would like us to believe, there is not a single person that risks loss of liberty or property because of the existence of DOMA.

Hope this helps! The rebuttal to the LA Times editorial is worth reading, too: http://opinion.latimes.com/opinionla/2011/04/blowback-nothing-defensible-about-doma.html

don
April 25th, 2011 | LINK

I suspect that Clement didn’t clear this with the rest of the partners before signing the representation contract. When they found themselves in this situation, and with I bet significant objection from the associates in the firm, they bailed. They should have been more honest and called out Clement for what he is, a arrogant republican asswipe.

Other Fred in the UK
April 25th, 2011 | LINK

@ EA & Cooner,

If only individuals were worthy of legal representation, how could companies, charities, etc. function? In an adversarial legal system how could justice be done without lawyers on both sides? It would be a pathetic legal system that only did justice in criminal cases.

I stand my original contention that (assuming they have legal standing) the House of Representatives are entitled to legal representation. (That does not mean that they have a right to take the money from anywhere, or that a legal firm must accept unreasonable terms and conditions.)

enough already
April 26th, 2011 | LINK

Other Fred in the UK,
I am German, though I spend much of my life in the US.
We, too, recognize the right of all who appear before a court to have proper representation.
The Americans do not. Only in criminal law may a person who can not afford a lawyer be granted one.

I see, therefore, no reason whatsoever for a private company to feel compelled to offer their services to hateful Christians whose one and only goal is to take away the few civil rights gays have in the US.

Just the opposite – the “gag” order imposed on all employees of the firm by the contract which this partner unilaterally undertook was illegal in several states. It also may well have put several lawyers working for the firm in a very bad situation vis a vís current clients and cases.

Not to mention that it is simply insufferable to expect anyone to carry out discrimination against themselves.

Had this been a case of criminal law, sure, I’d understand it. As it now stands, no – let the hateful Christians cough up their own money instead of abusing the tax payers.

Daily Cup of Jo
April 26th, 2011 | LINK

Someone will defend the Defense of Marriage Act, even though the institution itself is not being attacked. That’s what is so ridiculous. And I agree. The defender will likely be Clement. I suspect he’ll lose because, as Judge Walker discovered, DOMA like Prop 8, when picked apart, doesn’t pass muster. AND it’s based on ignorance, fear and hate. There’s that.

Other Fred in the UK
April 26th, 2011 | LINK

EA,

If you believe that everyone in the U.K. has a right to a lawyer paid for by the state if they cannot afford one in civil cases, you are very much mistaken. The state will pay for one but in, increasingly, limited circumstances.

My point was not about money, it was about lawyers refusing to represent people. I am very sorry that you are unable to see the self-evident dangers of lawyers refusing to represent unpopular causes. Such behaviour is liable to get a barrister thrown out of the Bar in England & Wales.

enough already
April 26th, 2011 | LINK

Other Fred,
Well, that’s my mistake – I thought you had the same right to representation in the UK the rest of us have in the EC.

Look, I thoroughly understand the validity of defending a person in a criminal hearing, especially when they have been charged with a crime which is repugnant.

Boehner has lawyers on the house payroll at his command. They are already paid for by the taxpayers.
Second, the contract was illegal and unenforceable in several US states.
Third, a firm assigned a case under criminal law can’t withdraw unless the judge permits them to. Under civil law, they may.

I certainly understand where you are going with this, I do, however, feel it only fair to point out that this is exactly the same argumentation which was used by the Nazis here in Germany. The exact same argumentation.

The American gays and transgender (I’ve given up on the whole alphabet soup thing-y, no matter what you say, somebody thinks you’ve p i ssed in their beer, so to hell with it) are sub-human and denied their rights. There is no compelling reason for a private firm in a civil case to support the furtherance of such barbaric practice.

I say it again: Let the Christians defend themselves, I have no objection to their so doing. The lies they told in California during the Prop.8 trial did them more harm than good. But don’t please, demand that a private firm support such hatred.

Priya Lynn
April 26th, 2011 | LINK

“Enough” said “I’ve given up on the whole alphabet soup thing-y, no matter what you say, somebody thinks you’ve p i ssed in their beer…”.

No one gets upset when you include the entire LGBT so that’s not an excuse to “give up” on inclusion.

Other Fred in the UK
April 26th, 2011 | LINK

EA,

I certainly understand where you are going with this, I do, however, feel it only fair to point out that this is exactly the same argumentation which was used by the Nazis here in Germany. The exact same argumentation.

I have no idea what you are referring to.

enough already
April 26th, 2011 | LINK

Other Fred,
I was not clear.
I’ll try again.
When the Nazis wanted to attack a group of people, they changed the laws to make such an attack possible.
When the Christians wanted to attack gays back under President Clinton, they changed the laws to make this possible.

Same exact mentality, same exact approach.

By all means, defend someone accused of a crime, especially if they are socially powerless. When admitted to the bar in most civilized countries of which I know, a lawyer accepts that a court may require this of him and accepts that he may not abandon a client once at court without the judge’s permission.

When, however, a government body, with its own lawyers decided to hire private firms instead of its own lawyers I see no compelling reason for any private firm to take on the case.

There – did that help?

Personally, I might add this: We get a few American students every year. Study abroad is much cheaper than in the US, at least in Germany.
Of those students, a small but not trivial number are loud, obnoxious, in your face, gay hating creationists. Exactly the sort of Christian who cause so much misery in the US. When I have such a student, instead of trusting myself to give them a fair evaluation, I always bring in a colleague for their examinations.
When, however, I have a student of whom I am fond, the sort of kid you just want to work with alone because they are brighter than you are – I also call in a colleague for their exams.

Other Fred in the UK
April 26th, 2011 | LINK

EA,

Thank you for your explanation. I was confused because I assumed that it dealt with my point about the dangers of lawyers refusing to represent unpopular causes. I was wrong.

So let me explain my point. Suppose the gay-rights movement was as popular today as it was 50 or 60 years ago. You might be OK with lawyers refusing to represent us because of our unpopularity, I, however, would certainly object to that refusal, and I suspect others too.

enough already
April 27th, 2011 | LINK

No, Other Fred – First, I don’t bother with the nonsense of being consistent where consistency won’t serve.

Fighting the Nazis was a very good thing for America to do. Invading Irak this century was a very bad thing for America to do.

As a gay man, I would have always supported helping us to defend ourselves.

On a practical level, though, I would still have seen the legal fact that in the US private law firms can not be compelled to engage in civil lawsuits.

It’s not all black and white to me on such issues. When I (as are you) am in Europe, I am legally married and there are stiff penalties for any Christian who would be so foolhardy as to attack our marriage.

The moment I land in the US, my marriage doesn’t exist and Christians can – and do – attack me on the level of human to sub-human, person with full civil rights (them) persecuting people with their civil rights stripped (us).

Hmm, maybe this will help: I still support the ACLU although their actions in Citizens United brought down the best hope the US had of remaining a representative democracy.

Other Fred in the UK
April 27th, 2011 | LINK

EA,

Who gets to decide when consistency is necessary and when double-standards are acceptable?

enough already
April 27th, 2011 | LINK

Other Fred,
That’s a good question. You answer first.

Other Fred in the UK
April 27th, 2011 | LINK

When it comes to laws and justice I think one should always be consistent.

Surely, the question of whether same-sex couples have a right to marry like opposite-sex couples is one of consistency?

enough already
April 27th, 2011 | LINK

Hmm, Other Fred,
we are never going to agree.

Different cultures, with different backgrounds. Discounting mad maggie, the UK last saw a genuine tyrant when – 1650′s if memory servers.
We, here in Germany, only saw the end to such tyranny in 1989.
The Americans, through, DOMA, declared gays sub-human and stripped us of our rights.

It is all very well and good to throw around the term “consistency” from the safety of the UK. When I’m in Germany, I have – according to you – far greater protections than you do.

When I’m in the US, I’m not even accorded human status.

So, no, I see no reason whatsoever to observe consistency regarding a law which declares me sub-human and strips me of my civil rights.

I think it was Dorothy Sayers (is she ‘in’ or ‘out with UK armchair philosophers this decade?) who pointed out that the very first thing which a true principle does is to go out and to kill somebody.

Consistency in treating all sentient beings? Sure: “…unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

But support for legislation born of the hatred of a certain, select, non-universal yet not all that small group of Christians determined to restore the 1000 year Reich?

Over my dead body and out of my cold, dead hands will I submit to them.

Timothy Kincaid
April 27th, 2011 | LINK

I guess I missed the declaration of sub-human status.

Was I not riding the hyperbole bus that day? Was my histrionics meter set at a level other than 11?

Other Fred in the UK
April 27th, 2011 | LINK

EA,

So you think that you should get to choose, in matters of law and justice, when to be consistent and when double-standards are acceptable? By extension so must everyone else in the U.S. You honestly believe that gays and lesbians would be better off (or at least no worse off) in such a situation?

enough already
April 28th, 2011 | LINK

Other Fred,
I said there would be no possible meeting of minds.

Every single person decides whether they will follow a law or not.

When it comes to odious laws which oppress me – strip me of my civil rights, declare me sub-human (yes, Timothy, we are not granted even the basic rights your Constitution accords to all humans) – then, yes, Fred, I do refuse to accept that such laws are valid.

And I firmly believe that every single person chooses – if only through tacit acceptance which laws they follow and which they reject.

That there are penalties for transgression – I accept that, too.

So, tell me – by your argumentation, I should just lie back and let the Christians who stripped me of my rights fifteen years ago do so without protest?

Fred – I see where you’re going with this, it’s the old “social consensus” argument and you, no doubt, hold me for too simple to grasp it. Keep trying, dear – I do grasp it. I also live within walking distance of a KZ.

Of course, a very non-insignificant group of Christians throughout the US everyday refuse to accept even the puny executive directives which are thrown at us gays as crumbs, though the have the temporary force of law.

Richard Rush
April 28th, 2011 | LINK

If true, this is fabulous news:

http://joemygod.blogspot.com/2011/04/tony-perkins-vs-coca-cola.html

Ever since King & Spalding dropped their DOMA cases, word has been that their top hometown client Coca-Cola had some role in convincing them to pull out. Yesterday FRC president Tony Perkins hinted that Coke may be next on their sh!tlist. Via press release:

“. . . Sources… confirm that one of King & Spalding’s top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case. . . .

If there is one thing in America that trumps religious superstition, it is corporate super-profits. So, when major corporations decide that being pro-gay is in their best interests, it’s huge evidence that we are well beyond the tipping point.

Other Fred in the UK
April 28th, 2011 | LINK

EA,

It’s clear you don’t have an answer to my question. You respond with a variety of bizarre points. My arguments in no way suggest you shouldn’t protest. Margaret Thatcher for all her faults was not a tyrant, if you want to see tyranny I suggest you visit North Korea. Similarly, why don’t you visit Uganda to see what treating gays and lesbians as sub-human might really mean.

enough already
April 28th, 2011 | LINK

Other Fred,
You see – no matter how good of a will we both have, such discussions are tough.

I did allow as to how some might not see mad maggie as the tyrant she was – you’re one of them. No hu-hu – she’s now officially ga-ga, though the harm she did lives on.

Back to the topic. The problem we face is that you (I think) are arguing that I am arguing that I disregard all laws unless they fit my passing fancy.

This is not true. I am a careful driver. When in Germany, I follow the German rules of the road. When in the US, I follow their rules – and some of the rules are downright contradictory, with both countries convinced that their way is the only way.

So, let’s try again. I see consistency as useful only in those situations in which being consistent is of social or material value. Not marking students whom I passionately dislike (those Christian exchange students from the US do more harm to America’s reputation abroad than even the Mormon missionaries – and that’s saying something). Not marking those students of whom I am quite fond.

That, to me is a valid application of consistency – in both cases, I am unable to be neutral and objective, so I pass the matter on to my peers.

As for your direct questions:

So you think that you should get to choose, in matters of law and justice, when to be consistent and when double-standards are acceptable?
(It depends on the law, it depends on the definition of justice. Give me firm examples, I will give you firm answers.)

By extension so must everyone else in the U.S.
(But, dahhling, they do! I saw my lawful husband, with medical power of attorney, legally valid in that US state hauled off by hospital security from my emergency room bedside because a Christian was so hateful as to refuse to accept “law”. I, at least, take the default of following a law unless I can clearly reason it is in violation of the US Constitution or the German Grundgesetz. Our enemies, a very much non minor element among the Christians just run roughshod over laws whenever they would prevent them from being as hateful as they wish to be.
You honestly believe that gays and lesbians would be better off (or at least no worse off) in such a situation?

(Which situation?)

Other Fred in the UK
April 28th, 2011 | LINK

EA,

Thank you for your reply.

I see consistency as useful only in those situations in which being consistent is of social or material value.

That seems very reasonable. However there is no widely accepted means of measuring social value. (I would accept that material value can be measured by money.) So you must believe that consistency is a good thing where it is of material value or what you regard as social value.

As for firm examples, we have already discussed lawyers being able to refuse anti-gay cases because they are unpopular. You, evidently, do not see the value in also preventing lawyers refusing pro-gay cases because they are unpopular, or more generally preventing unpopular minorities having difficulty finding lawyers to help defend their rights. You do see the value in ensuring homosexuals are treated equally to heterosexuals. You disagreed with my implication that there should be rules specifying the grounds for lawyers refusing cases, however we are both keen on laws ensuring homosexuals are treated equally to heterosexuals.

Others have different values and therefore following the same logic will see the utility (or disutility) of consistency in different situations differently. If consistency in matters of law and justice is not valued for it’s intrinsic value then the only argument against specific anti-gay laws, even constitutional amendments, is that we don’t agree with them.

Also, I would value a society where the was equality and consistency even when not specifically demanded by law. Although I accept that we seem to differ on that.

enough already
April 28th, 2011 | LINK

Other Fred said:
Others have different values and therefore following the same logic will see the utility (or disutility) of consistency in different situations differently. If consistency in matters of law and justice is not valued for it’s intrinsic value then the only argument against specific anti-gay laws, even constitutional amendments, is that we don’t agree with them.

But, Fred – that is reality. I can’t force the Christians to stop disregarding laws which forbid their hatred. I think the fact that I honor the right of all people to the best possible defence attorneys when facing criminal charges is the minimum which a society owes every single sentient being.
And that places me far and away on a stricter interpretation of consistency than is believed by 68% of the American Christians.

Civil matters are different. Our bone of contention, if you will, is that you feel a that any lawyer whom a client can pay must, without exception, take on that client’s case. I think that a lawyer should have the right, in a civil case, to say no.

I am, in fact, strictly following Constitutional law in America by saying this. You, to be fair, are being inconsistent with that law.

I firmly believe in following laws by default unless I am convinced they violate human or civil rights. How can I do otherwise?

Timothy Kincaid
April 28th, 2011 | LINK

Enough Already,

If you think that my country declares you to be sub-human, don’t come here.

Seriously. It’s full of Christians and as you are convinced that all Christians are by definition evil, don’t come here.

You think that you are like Lisa Miller and don’t have to follow laws that you don’t like. Well there are laws here that you don’t like, so don’t come here.

You love it there in Germany where everything is perfect. So stay there. Don’t come here.

However, if you still decide that you are compelled to come to this evil place, then kindly shut the f*ck up about how you are declared sub-human here.

Maybe, just maybe, the reason you aren’t treated with the greatest of respect in the US has less to do with your “gays are sub-human” status and more to do with Americans having little tolerance for insufferable attitudes of European superiority (the “ugly American” in reverse).

enough already
April 28th, 2011 | LINK

Timothy, my ties to the US are quite deep.

If they weren’t, I wouldn’t be engaged in fighting the enemies of gays and the transgender.

Other Fred and were having a discussion. Obviously, this was the wrong forum for that and I apologize.

Other Fred in the UK
April 29th, 2011 | LINK

EA,

By accepting ‘that is reality’, I take it you are that if consistency in matters of laws and justice was viewed as having intrinsic value, we would have stronger arguments against anti-gay laws.

I can’t force the Christians to stop disregarding laws which forbid their hatred.

What are the civil and criminal justice systems for then?

I do not think that inability of the client to pay is the only acceptable grounds for a lawyer to refuse a case. (For example, cases outside their field of expertise.) But you are correct I do not think lawyers should have a right to refuse a civil case.

I will take your word for it that my views differ from the U.S. Constitution. If one’s political views ought be consistent with the law as it stands then all new laws and changes to old laws must be a bad thing.

This seems to me to be a perfectly acceptable venue to discuss whether lawyers can refuse anti-gay (or pro-gay) cases. For which I see no need to apologise. Your various other statements regarding sub-human status in the U.S. and Tyranny in Britain are another matter.

enough already
April 29th, 2011 | LINK

Other Fred,
The Americans do not apply justice, only law through their courts.

Nor do they seek to be just in their criminal law, only to punish.

This is a very great difference to the way your UK countries’ laws and German law approach things.

So very much, yes – if gays and the transgender were not stripped of their civil and human rights, etc. in the US and if the Christians attacking us played “fair”, then consistency would be more relevant.

Still and all – I firmly maintain that every single person, when a law rises above the mundane, chooses consciously to follow it or not.

The rest will have to await another forum for discussion – my position is neither unique nor without considerable basis.

enough already
April 29th, 2011 | LINK

Other Fred,
I just found this very interesting comment from the noted American lawyer, Ari Ezra Waldman:
http://www.towleroad.com/2011/04/the-curious-case-of-paul-clement.html

He explains the situation, under American conditions, enormously better than I – a non-lawyer – every could.

Perhaps you can find the time to read it and we then might continue talking about this?

Timothy Kincaid
April 29th, 2011 | LINK

Enough Already

The Americans do not apply justice, only law through their courts.

Nor do they seek to be just in their criminal law, only to punish.

Interesting view…. we Americans are just fascinated to learn that we do not seek to be just.

…my position is neither unique nor without considerable basis.

I think you had a typo. I’m sure what you meant to say was that your position is neither unique nor without considerable bias.

Priya Lynn
April 29th, 2011 | LINK

With the highest incarceration rate in the world by far and 3.1% of the population in jail, prison, or on probation or parole the U.S. is obviously doing something wrong.

Priya Lynn
April 29th, 2011 | LINK

I meant to say the U.S. justice system is obviously doing something wrong.

Richard Rush
April 29th, 2011 | LINK

Sometimes I think a more accurate characterization might be the
U.S. justice vengeance system.

Somehow I think we need to strive for removal of emotions from the whole approach of dealing with criminality. We need a more scientific approach for reducing criminal activity, and for genuinely rehabilitating those who fall through the cracks. But that would require majority support from the American public, and that’s not likely to happen anytime soon because being “tough on crime” is a proven vote-getter for political candidates.

Priya Lynn
April 29th, 2011 | LINK

Right Richard. I’m mortified that the current Canadian conservative government is importing criminal justice ideas from the States such as manditory minimum sentences that remove discretion from judges and result in situations where a person stealing a slice of pizza from a child gets sentenced to life in prison.

J. Peron
May 1st, 2011 | LINK

Box Turtle Bulletin mentioned in my new Huffington Post article here:

http://www.huffingtonpost.com/james-peron/gay-bullies-or-republican_b_856067.html

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