BY DUNCAN OSBORNE | One week after agreeing to represent the House in lawsuits challenging the constitutionality of parts of the Defense of Marriage Act (DOMA), the law firm that took the assignment has asked to withdraw from the suits and the attorney who accepted the case has resigned from the firm.
“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,” Robert D. Hays, the chairman of King & Spalding, said in an April 25 statement widely quoted on the web. “Last week we worked diligently through the process required for withdrawal.
Paul Clement, former solicitor general chosen to represent House, resigns from King & Spalding, keeps case
After the Obama administration announced in February it would no longer defend DOMA in cases involving challenges to the statute’s ban on federal recognition of same-sex marriages, House Republicans selected Paul D. Clement, a partner at the firm, to represent them.
That choice was disclosed on April 18 and won praise from conservative groups.
Clement worked in the Bush administration as the principal deputy solicitor general from 2001 to 2005. That is the second highest political position in the Solicitor General’s office. In 2005, he became the solicitor general. That office is essentially the federal government’s lawyer. Clement left that office in 2008, Bush’s final full year as president, and joined King & Spalding as a partner.
Clement was a member of the Federalist Society, a right-leaning legal group, from 1998 to 2001. He published articles in a Federalist Society journal and in a journal published by the Washington Legal Foundation, also a right-leaning group. Clement has also given speeches at Federalist Society events.
During his time in the Solicitor General’s office, Clement successfully defended the Solomon Amendment, a 1996 law that denied federal dollars from colleges and universities that barred military recruiters from their campuses. Some schools that objected to the Pentagon’s Don’t Ask, Don’t Tell policy had banned recruiters and they sued, saying requiring them to admit recruiters violated their First Amendment rights. In 2006, the US Supreme Court unanimously upheld the Solomon Amendment.
King & Spalding faced harsh criticism from some gay groups, notably the Human Rights Campaign (HRC), the nation’s largest gay lobby, for taking the case. The law firm scored a 95 out of 100 on HRC’s Corporate Equality Index in its most recent ranking.
Some attorneys and pundits, including some who support same-sex marriage, objected to HRC’s attack on King & Spalding, saying that attorneys have an obligation to their clients that transcends politics.
HRC was widely criticized last year for the inadequacy of its index after Target, which also won high marks on the index, gave $150,000 to a Minnesota political action committee that supported an anti-gay candidate for governor.
In his April 25 resignation letter, Clement wrote, “I resign out of the firmly held belief that representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”
Clement joined Bancroft PLLC, a Washington, DC law firm that was founded by Viet Dinh, who served in the Bush Department of Justice from 2001 to 2003. Clement’s resignation from King & Spalding could carry a high price for him.
At King & Spalding, Clement was doing appellate work for clients such as General Electric, Sony BMG Music Entertainment, and the US Chamber of Commerce. With 800 attorneys in 16 offices, the firm can easily support high profile clients and cases. Bancroft appears to have eight lawyers and one staff person.
In his resignation letter, Clement wrote that he would keep the DOMA case.
“But having undertaken the representation, I believe there is no honorable course but to complete it,” he wrote.
Recently, Clement has represented the National Rifle Association in court challenges to local ordinances that limited or banned gun ownership. He is also representing 26 states in their challenges to the federal health care law.
It is not clear that a small firm like Bancroft can support such clients.
HRC praised King & Spalding in an April 25 press statement.
“King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law. We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values,” the statement read.
DOMA bars federal recognition of same-sex marriages and allows the states to do the same. Several groups, including Lambda Legal, the American Civil Liberties Union, and Gay & Lesbian Advocates & Defenders have filed court challenges to the law.
Clement’s first work on behalf of the House of Representatives will be in Windsor v. United States, a lawsuit filed in New York by the ACLU on behalf of Edie Windsor, who faced a federal tax liability of more than $350,000 on her inheritance from her spouse, Thea Spyer. The couple, together for 44 years at the time of Spyer’s death in 2009, married in Canada in 2007, a union recognized by the State of New York.
Despite conservative criticism of the Obama administration for refusing to defend DOMA, Clement, in 2005, voiced a view identical to a critical component in Attorney General Eric Holder’s explanation for the Justice Department’s current posture.
Testifying at his 2005 confirmation hearing to be solicitor general, Clement told senators, “Whenever the constitutionality of an act of Congress is called into question, outside of a narrow band of cases implicating the president’s Article II authority, the office will defend the constitutionality of the acts of Congress as long as reasonable arguments can be made in the statute’s defense.”
In a February letter to House Speaker John Boehner, an Ohio Republican, Holder, explaining the DOJ’s new position on DOMA, Holder wrote, “As you know, the department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the department does not consider every plausible argument to be a ‘reasonable’ one.”