Dispatches from the Creation Wars

In a rather shocking development on the DOMA front, the law firm of King and Spalding withdrew its participation in representing the House in defense of that law. And that withdrawal led Paul Clement, the firm partner who was set to litigate the case, to resign and immediately join another firm that will handle the case.

The Atlanta law firm King & Spalding on Monday filed a motion to withdraw from its participation in defending the Defense of Marriage Act, prompting the immediate resignation of high-profile partner Paul Clement.

The law firm had come under fire from gay rights groups when partner Clement agreed to defend the law for Republican leaders in the U.S. House of Representatives. The act defines marriage as only a union between a man and a woman.


The firm explained its decision and so did Clement:

“Last week we worked diligently through the process required for withdrawal,” Robert D. Hays Jr., the firm’s chairman said. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

Clement, the head of King & Spalding’s national appellate practice, was to be paid $520 an hour for his representation. He once served as U.S. solicitor general for President George W. Bush. The Obama administration has said it will no longer defend the law in court.

In a letter to Hays, Clement said he was resigning “out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Clement said he “would have never undertaken this matter unless I believed I had the full backing of the firm.” Clement said he has “immense fondness” for his colleagues and the law firm, “but in this instance, my loyalty to the client and respect for the profession must come first.”

There are so many fascinating elements to this. First, the firm was in a very tough spot. They were gonna catch all kinds of hell for taking the case and they had to know Clement would leave if they dropped it. And Clement is not just some new associate at the firm. Clement is a rock star in the legal world, one of the absolute best appellate advocates in the country. Losing him means losing a hell of a lot of business for the law firm.

So what does it mean that the firm made that choice? I would think it means that they thought they’d lose even more for taking the case, and that means that the raw political calculations are starting to favor the side of equality. And that could be a very powerful tipping point for the entire gay rights movement.

I’d be very curious to know what Clement actually believes about the case. He doesn’t necessarily have to believe that DOMA is constitutional in order to take the case, and he’s right that this is the way our adversarial system works, both sides are entitled to a competent defense. But this isn’t a criminal case and he’s not a public defender. He’s choosing to take the case and he’s clearly committed to it.

I couldn’t do that. If I’m in a position to choose which constitutional positions I want to defend, as he is, I’m not going to take a case that I believe to be wrong on principle. I’m going to use my talents to try to win cases that make America better, more free and more just, not the other way around. There are plenty of good lawyers on the other side, let them defend the law they believe in. It’s sad that a man of Clement’s enormous talents is lending them to the side of inequality and bigotry.