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Who Should Defend An Indefensible Law?

Lawyers who defend accused criminals or unpopular causes often field the question, “How can you take on such a case?” The standard answer is that everyone deserves a day in court, which is true, and the standard rebuttal is that not every lawyer must take every case, which is also true.

So the contradiction stands. We can accept the principle that every side in a case deserves good representation, but all of us have something that we would not personally touch with the proverbial 10-foot pole.

I am not a lawyer, but my personal taboo would be tobacco companies. They deserve a fair shake in court, but I have never been interested in arguing on behalf of an industry that callously kills its customers. And while I don’t begrudge the law firms who represent the industry, if I were a young attorney, I would not want to go to work for one of those firms either. There are plenty of other places to ply one’s trade.

An interesting wrinkle in this old dilemma arose this week when the prominent Atlanta law firm King and Spalding withdrew from an engagement to defend the federal Defense of Marriage Act in the appeal of last year's district court ruling, which found it unconstitutional. In response, the partner handling the case, Paul Clement, resigned to move to another firm so that he can continue to represent House Republicans in defending the law.

Clement, who was U.S. solicitor general in the George W. Bush administration, has refused to say whether he personally believes in the law's purpose, which is to deny all federal recognition to same-sex marriages regardless of their legality in a given state. Clement maintains simply that any party to a legitimate legal dispute deserves effective representation. In his resignation letter, he expressed the opinion that “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

Critics of King and Spalding’s decision to handle the case said the firm, as a private partnership, had every right to be selective in the causes it chose to promote or defend — and that this law's discriminatory, unjustified assault on the rights of same-sex couples did not deserve the backing of such a prominent and prestigious firm. The firm has also made a concerted effort to support the lesbian, gay, bisexual and transgender community, making the case an awkward fit. Though King and Spalding first took the case after the Justice Department declared it would no longer defend the law, further reflection and protests from gay rights groups led the firm to reconsider.

In the end, both sides make a valid point, and this result is about the best we can hope for. King and Spalding employees have a right to expect their firm to respect human and civil rights and not to agree to defend a law that, from public policy and civil rights perspectives, is indefensible — and has been since it was enacted, for patently political motives, 15 years ago.

Yet it is precisely because the principles involved are so important that it would be best not to win the case essentially by default. That is precisely what might happen if the Obama administration simply abandons the appeal, leaving nobody with standing to take the case to the higher courts. DOMA deserves to be struck down. But striking it down will have more legal and moral force if doing so follows a full and fair hearing.

Of course, there is no guarantee that the U.S. Supreme Court will actually invalidate DOMA, though it certainly seems to be the right answer given the lower courts' emerging strong consensus against anti-gay discrimination, as well as the high court's own 2003 decision in Lawrence v. Texas, striking down state laws against homosexual conduct.

Sometimes we just have to trust the justices to do the right thing. Given enough chances, they do eventually get things right. Lawrence reversed the Supreme Court's embarrassing decision in Bowers v. Hardwick only 17 years after it was decided. It took more than half a century for the court, in the landmark 1954 Brown v. Board of Education decision, to reverse the endorsement of racial discrimination it gave in Plessy v. Ferguson.

Clement is not the villain in this story. He is entitled to the benefit of the doubt in his claim that continuing to represent House Republicans in their defense of the law is a matter of principle rather than an act of bigotry. He won't win himself the respect of history, but he won't earn its condemnation, either. The argument he makes, that a lawyer has an obligation to his or her client regardless of the popularity of the client’s cause, is correct.

Clement's decision may make him a modern-day version of Harold R. Fatzer. Fatzer was the Kansas Attorney General who defended his state's discriminatory school practices in Brown v. Board of Education. He told the Supreme Court that, though Topeka's schools were almost entirely segregated, the school district had no discriminatory intent.

But on the day the court ruled 9-0 against him in Brown, Fatzer announced forthrightly that Kansas would honor and implement the decision. Two years later, Fatzer was appointed to the state Supreme Court. He became its chief justice in 1971 and retired in 1977, dying 12 years later.

A few years ago, when Washburn University School of Law gave Fatzer a posthumous Lifetime Achievement award, it did not even mention his role in Brown v. Board of Education.

A lawyer who does his job to give a client a day in court will sometimes have to make unsavory arguments. There is no glory in it, but there may still be justice. King and Spalding did what it felt it had to do for itself, while Clement is doing what he feels he must for a particularly undeserving client. That’s how the system works. It will make a victory for civil rights all the more satisfying in the end.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

The views expressed in this post are solely those of the author. We welcome additional perspectives in our comments section as long as they are on topic, civil in tone and signed with the writer's full name. All comments will be reviewed by our moderator prior to publication.

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5 Responses to "Who Should Defend An Indefensible Law?"

  • Chuck Anziulewicz
    April 29, 2011 - 9:50 am

    Perhaps the law firm of King & Spalding simply came to the realization that there was no point in defending something as transparently unconstitutional as the Defense of Marriage Act.

    WHY is DOMA unconstitutional? Consider: A Straight couple legally married in Iowa is automatically entitled to 1,138 legal benefits, protections, and responsibilities according to the Government Accounting Office (GAO). Many of those benefits have to do with tax law, Social Security, inheritance rights, child custody, and so on. But because of DOMA, a Gay couple that is legally married in Iowa is still unrecognized by the federal government for those benefits.

    Consider, also, the “Full Faith & Credit” clause of the Constitution. Because of this, any Straight couple can fly off to Las Vegas for drunken weekend, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, and at all levels of government. But thanks to DOMA, a Gay couple that is legally married in Iowa becomes UN-married if they relocate south to Missouri.

    The ONLY real difference between a married Gay couple and a married Straight couple is the gender of the two people who have made the commitment. It has nothing to do with procreation, since couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. So there is really no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits, protections, and responsibilities that married Straight couples have always taken for granted. This cannot be accomplished in a piecemeal, state-by-state fashion; it is the FEDERAL government which, through its own actions, has made this a FEDERAL issue.

  • Linda Davenport
    April 29, 2011 - 10:23 am

    Mr. Anziulewicz,

    Could we perhaps persuade you to run for office? Your comment is reasonable, logical and without hysteria. These are qualities which most of our elected officials don’t seem to possess.

    Thank you for your thoughtful (and thought provoking) comment. I could not agree with you more.

    Linda Davenport

    • Chuck Anziulewicz
      April 29, 2011 - 11:09 am

      You are too kind, Ms. Davenport. I’ve actually had friends suggest that I ought to run for office.

  • Janet Flanners
    April 29, 2011 - 11:13 am

    NCLR’s Kate Kendall’s partial statement about K&S and defense of DOMA:

    “DOMA was passed in order to express moral disapproval of LGBT people. It does not embody conflicting principles that need a full-throated defense on both sides to produce a just and fair result. The sole purpose of DOMA is to discriminate against same-sex couples. It perpetuates harm against an underrepresented community and singles out certain families for unequal treatment from their government. ”

    Plain and simple. DOMA’s got to go.

  • D Rose
    April 29, 2011 - 8:21 pm

    Every *individual* is entitled to his day in court ….

    I’m not so sure that this principle can be extended from individuals to cover laws also …