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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.

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