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King and Spaulding dropping DOMA was due to Clement’s error, not gay bullies

Timothy Kincaid

May 13th, 2011

When King and Spaulding announced that they would not be defending DOMA on behalf of the House of Representatives – after partner Paul Clement had announced that they would – anti-gay activists had a field day. Words like “intolerance” and “homosexual activist bullies” screamed across headlines in articles designed to portray the gay community as a collection of thugs who forced a poor defenseless international law firm into following the insidious homosexual agenda.

Even mainstream newspapers and editorial staff immediately assumed that the homosexuals were being too pushy and self-righteously took the opportunity to remind gay people that while gay rights may be worth fighting for, they really are just a “cause”, you see, and not so important that you can’t play nicely. Pointing out to a lawfirm that DOMA hurts gay people is, well, Un-American.

The Washington Post ran an editorial titled King & Spalding and HRC do a disservice to American values in which they declared:

HRC is right to fight vigorously to overturn DOMA, which deprives gays and lesbians of many of the rights enjoyed by their heterosexual counterparts. But it sullies itself and its cause by resorting to bullying tactics.

At the San Francisco Chronicle, a writer indignantly asserted “Case closed. This is intimidation. This is intolerance.”

I do believe that HRC bungled this situation. They behaved like jerks, adopted high-pressure tactics as their first option, and presented our community in about the worst light possible. Threatening to send out letters to K&S clients and then bragging on TV when the case was dropped was about the most stupid course of action that could be imagined.

If there are any of our readers who still contribute to HRC, this might be a good opportunity to look for another organization – one that has a better ear for political tone.

That being said, it is not unreasonable to remind a company – including law firms – that engaging in anti-gay activism or acquiescing to the demands of anti-gay activists will cost them the support of gay people and our friends, family, neighbors, supporters, and all people who value equality. As equality becomes more and more the national favored opinion, companies will find that being “neutral” on matters of sexual orientation equality will be viewed like being “neutral” on racial equality or gender equality. Forward thinking CEO’s may well be receptive to reminders about future image, provided that they aren’t made to be fools in the press.

But as it turns out, neither HRC’s bragging nor anti-gay activists’ shrieking are based in reality. King & Spaulding dropped the DOMA defense because Paul Clement never had it approved in the first place. He signed the case without following procedures or giving the firm an opportunity to measure the benefits or detriments of such a course of action.

The Fulton County Daily Report decided to look into things and found an entirely different chain of events than that which the big papers just assumed had happened. (Via WSJ)

But the Daily Report spoke to two firm lawyers and a third source anonymously who said that the DOMA matter was not fully submitted to King & Spalding”s business review committee, a firm requirement, before Clement signed a contract obligating the firm. They said the committee immediately began reviewing the case the day after the firm learned of the contract—and rejected it the next day, according to the Daily Report.

The sources said the firm’s partners were taken by surprise when news broke that Clement had taken the case. “Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee,” one of the sources told the Daily Report, noting that the DOMA engagement was both controversial and had a discounted rate.

The King & Spalding sources, according to the Daily Report, said that there was widespread, adamant opposition to the DOMA case within the firm. “”It sticks a finger in the eye of people,” said one source, referring to the firm’s gay lawyers and staff.

And, a source said, the case did not fit the firm’s business mission. “King & Spalding is a corporate law firm—not a constitutional firm.”

I believe that there could have been a way that Clement could defend DOMA and that Spaulding & King could have worked with our community to craft a statement that did not back K&S into a corner. But Clement did not consider his firm’s interests and it was his arrogance and presumptions about DOMA and public opinion that ultimately embarrassed the firm.



Shannon Spencer Fox
May 13th, 2011 | LINK

Y’know, there’s a phrase I like to use at times like this that I really need to use more on my own personal bit of webspace… ‘OH ****, REALLY?!’ It’s perfect for situations like this where, despite the claims of a lot of people with some pretty visible axes to grind, the answer to the question is actually a lot more simple.

In this case, so the law-firm in question didn’t take some kind of side on the issue, and simply wasn’t consulted at all before one of their more higher-profile members gave a emphatic, ‘Harvey Birdman’-ese ‘I’ll take the case!’? OH **** REALLY?!

On a related subject, I did personally wonder about Clement’s ‘retiring’ to a smaller law-firm to continue the defense of DOMA… I wonder if that was more the polite, business-themed version of ‘We totally canned him’.

Ben in Atlanta
May 13th, 2011 | LINK

“If there are any of our readers who still contribute to HRC, this might be a good opportunity to look for another organization – one that has a better ear for political tone.”

Although it’s true that you can’t lose a friend you never made henceforth I will just skip stories with your name in the byline.

Acceptance doesn’t require approval. There are people in community that I don’t particularly like but they’re still in community.

May 13th, 2011 | LINK

Please learn how to get to the point when writing a story. Sometimes people like to just scan things to see what’s going on. We don’t need a recap from beginning to end.

May 13th, 2011 | LINK

Clement knew exactly what he was doing and what the likely consequences would be.

I look forward to the slow dibble of disclosure about this episode as people refuse to be made to look like fools.

enough already
May 13th, 2011 | LINK

Ben in Atlanta,
I often, and heartily, disagree with Tim and Jim here.
My comments are subject to moderation more often than not, and there is great tension between my views on Christians (not positive) and this website’s.

So, when I now say you are totally going to miss out on some of the very best thought in gay activism, you need not assume I am knee-jerk defending anyone.

Because we gays and transgender are such a diverse group, it is not surprising that we also find different organizations and structures which best fit our demand for full human and civil rights.

The HRC is, for some gays and transgender a good fit. There are two groups of gays, however, for whom they aren’t such a great fit: Those of us in our fifties or older who remember ActUP! and the more in-your-face style which helped to stop the dying and the much younger generation of gays and transgender who simply don’t understand a “need” to let the Democratic party set our agenda, take our money, tell us what we are to be satisfied with and spend hundreds of millions of our dollars to achieve less than the (shudder) LCR did last year. A group, before you even begin to have the thought, which I consider only barely less disgusting than NOM. Which is among the filth of the earth.

Why don’t you explain your position? Truly, the ra-ra U.S.A. patriotism and Christian apologist tendencies here aren’t everyone’s cup of tea, but these folks in a very real sense just gained our Ugandan brothers and sisters a reprieve. For that reason, alone, they are worth listening to.
And arguing with.

May 13th, 2011 | LINK

Thank you for this and many other well researched articles. What I like about this site is that it is a lot less reactionary than other LGBT news blogs. Bullhorn condemnation is fine, but let’s reserve that angry energy for those that rightly deserve it. In the meantime, I think its better to cautiously apply judgement until hard evidence is collected. Otherwise, its embarrassing and damaging whenever we get duped by a hoax or a misunderstood situation. (ie.Shirley Sherrod)

May 14th, 2011 | LINK

Interesting, the way this fell out — when the news that K&S was dropping the case first came out, I felt that HRC was grandstanding — it just didn’t seem reasonable that a firm of that stature was caving to pressure from an organization that many in the community see as a joke. (Although, of course, there’s no way to tell if K&S knows about that part of it — or cares.) It just seemed more reasonable that it was a combination of pressure from major clients and internal controversy.

I hadn’t considered that Clement was so arrogant that he’d bypass the firm’s established procedures.

Thanks for the report and analysis. That kind of commentary is one of the reasons BTB is one of my “go to” sources.

May 15th, 2011 | LINK

Ben in Atlanta,

“Acceptance doesn’t require approval. There are people in community that I don’t particularly like but they’re still in community.”


Did Jim state or imply that anyone is out of our community? Blind acceptance of ANY position–be it HRC’s, LCR’s, ActUp’s, etc.–does a service to no one.

Question authority! Especially those who claim to speak for the entire community. Especially those who spend most of their time in suits raising money to be able to throw more events to raise money wearing suits. :)

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