Paul Clement's misplaced decision

  • by Kate Kendell
  • Wednesday April 27, 2011
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Kate Kendell. (Photo: Jane Philomen Cleland)<br><br>
Kate Kendell. (Photo: Jane Philomen Cleland)

Following days of intense criticism, the Atlanta-based law firm of King and Spalding LLP announced this week that it was withdrawing from its agreement to defend the so-called Defense of Marriage Act, or DOMA, on behalf of the Bipartisan Legal Advisory Group convened by House Speaker John Boehner.

Paul Clement, a former U.S. solicitor general and the King and Spalding law partner who would be leading the defense, promptly resigned from the firm. In his resignation letter, Clement said he was influenced not by his own beliefs about DOMA, but rather by his view that all laws should be defended. In fact, he claimed that his "thoughts about the merits of DOMA are as irrelevant as the views [he] held about any of the dozens of federal statutes [he] defended as solicitor general." Let's be clear: any comparison between Clement's decision to defend DOMA as a private lawyer and his prior role as solicitor general is utterly misplaced.

As a general rule, the executive branch has a responsibility to defend the laws enacted by Congress so long as a reasonable defense is possible. The role of the solicitor general is to represent the government's position in litigation. A solicitor general must follow the directions of the president or the attorney general about whether and how to defend a challenged law, and even the executive branch has no obligation to defend a law that is blatantly unconstitutional. In stark contrast, apart from very narrow exceptions, a private lawyer has no responsibility to represent any particular cause, client or case.

In his letter, Clement appeals to the lofty notion of defending a client, no matter how unpopular. But that principle is a feature of our criminal law system, where we have rightly determined that what is at stake is so important – a person's liberty, or, in some cases, life – that a criminal defendant has a constitutional right to a defense. But a law is not a person. There is no corresponding right for even the most odious and discriminatory law to have its day in court. Clement's claim that he has a duty to defend DOMA, regardless of his own views, gravely misunderstands the legal process.

In truth, in order to defend DOMA, Clement need not simply set aside his personal views on DOMA. He must set aside his respect for the principle of equality. He must be willing to argue either that gay people have not suffered a history of invidious discrimination and do not deserve heightened constitutional protection, or that the government's discrimination is justified. There is no principled way to defend a measure that serves no purpose other than to single out a socially disfavored group in order to make them unequal to others.

Clement and his defenders argue that unpopular causes are entitled to representation. For example, the American Civil Liberties Union represented the Ku Klux Klan in the late 1970s when the KKK was denied a right to march in Skokie, Illinois. But any comparison between that case and Clement's defense of DOMA unravels immediately. In the Skokie case, the ACLU was defending the First Amendment. They rightly took the position that even a group as repellent as the KKK had a right to free speech. In this situation, there is no similar underlying principle or right at stake. No one would be bothered, for example, if an outdated Jim Crow law that had never been repealed were challenged in court and no lawyer was willing to defend that law. In order to justify the defense of a law, it must be possible to identify some principle that deserves to be vindicated, and here, there simply is none.

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. No self-respecting lawyer or law firm should be willing to tarnish their reputation by defending such an appalling law. King and Spalding's decision to withdraw was a turning point in this struggle because it symbolized a shift in power between those who understand that simple truth and those who do not.

Kate Kendell, Esq., is the executive director of the National Center for Lesbian Rights.