Alan McCornick on King & Spalding: It's About the Right of People, Not Ideas, to Legal Defense

Second postscript: after I wrote yesterday about the King & Spalding decision to drop the defense of DOMA, I discovered that Alan McCornick has also posted about this topic this week, at his wonderfully thought-provoking Hepzibah blog.  As with everything Alan writes, this posting is dense, and I won't try to summarize it: I challenge readers to read it for yourselves, working carefully through Alan's well-constructed prose.

I do want to take note of one observation Alan makes, which casts light on my own argument yesterday, and which makes this point far more clearly than I did.  This has to do with the right of everyone to a defense.  As Alan points out, that right applies to persons and not to ideas.  Those now arguing that Paul Clement and Bancroft are doing something noble by asserting DOMA's "right" to a legal defense are confusing persons with ideas in precisely the same way that the U.S. Supreme Court wishes to confuse persons and corporations in its 2010 Citizens United decision.

Here's how Alan puts the point:

Doesn’t everybody deserve their day in court? Aren’t they right when they say if everybody in the executive branch of government decided cases a priori, wouldn’t that disturb the balance of powers? Should this not stay in court all the way to the top if necessary? That's Clement's argument, and that's why he resigned when his firm refused to pursue the case

Well, no.

First off, it’s people who deserve their day in court, not ideas. If by some cruel accident we elected a fascist to office (a few years ago that would have seemed a lot more ridiculous), and once elected he announced he wanted to make all the Jews in town wear a yellow star, and a class action suit grew out of this and he went to court over it, I’d say, yes, by all means, give bozo his day in court. 

And I agree.  To return to the life story I told yesterday as a parable--the story of my adolescent conversations with my father about the ethics of legal defense--I never disagreed with my father that everyone has a right to a legal defense.  The point of our contention was whether a guilty person being defended by an attorney has a right to a defense that seeks to represent that person as innocent rather than guilty. 

People have a right not to be judged guilty before their guilt has been proven.  And they have a right to a legal defense in which their guilt or innocence is ascertained within the court system.  They have a right to a court hearing even when they are guilty, though it seems to me that in this case, how their attorney defends them and deals with their guilt when it is clear to the attorney does deserve careful consideration.

Ideas are something altogether different.  I agree wholeheartedly with John Aravosis when he notes that no one today would seriously propose a court defense of laws reinstating legal segregation.  We've worked our way through the excruciating cultural debates that led to cultural and legal decisions in that area that are, most of us hope, now irreversible.  These debates--and the legal battles they entailed--are not to be revisited.

And we're rapidly approaching the same point in our culture, vis-a-vis the human rights of gay and lesbian persons.  Very soon, we will be at a point of no return at which social consensus decides that it is enervating, undemocratic, dangerous to civil society to revisit the notions of legally enshrined discrimination on which DOMA rests.  

And in my view, King & Spalding recognize this, and have rightly agreed that DOMA--the idea of legally enshrined discrimination against gay and lesbian citizens in the area of marriage rights--does not deserve a defense.  If we are not willing to argue that the courts ought to revisit questions of legal segregation on the basis of race, I wonder why some of us remain willing to argue that proposals to legalize discrimination on the basis of sexual orientation deserve a legal defense.

To me, it seems obvious that what those defending DOMA's "right" to a court hearing, and applauding Paul Clement for his noble and principled stand about the right to a defense, are really saying is that powerful ideas and powerful people always deserve their day in court.  And that our society falls apart when the right of powerful ideas and powerful people to a court hearing is questioned.

And that presupposition touches, of course, on the ethical vacuousness that I repeatedly questioned when I discussed the legal profession with my father during my teen years.  The idea that lawyers should always be hired guns for those with the most power and money in any given society, and should call their willingness to defend power and wealth a praiseworthy representation of everyone's right to a legal hearing: that sticks in my craw.  It's, in my view, tantamount to defining a lawyer's work as a form of prostitution.