Wednesday, April 27, 2011

King & Spalding Refuse to Defend DOMA: Framing the Ethical-Legal Discussion

I'm finding the furor of many of those commenting on the recent decision of the King & Spalding law firm to drop the defense of DOMA fascinating.  As many readers may know, this Monday, the D.C. law firm whose services had been retained by Republican House Speaker Boehner to defend the Defense of Marriage Act announced that it will no longer be available for that service.  At that point, the King & Spalding point man assigned to the case, Bush solicitor general Paul Clement, resigned from King & Spalding and joined the firm Bancroft PLCC, which has announced it will carry on the DOMA defense.  Clement is a Republican who routinely donates to Republican candidates.

The anti-gay machine of the religious and political right is, predictably, reacting with outrage to the decision of King & Spalding to drop the defense of DOMA.  There's the usual talk of bullying gays threatening decent, God-fearing American citizens intent only on exercising their right to free speech and to freedom of belief.  Candace Chellew-Hodge surveys the field of arguments now being offered by religious right leaders against King & Spalding at Religion Dispatches today, noting their predictability.

But if Amanda Terkel's report at Huffington Post yesterday is correct, much of the pressure for King & Spalding to drop the DOMA case was internal.  It came from King & Spalding employees concerned about their futures, if they had been associated with a law firm known to defend a discriminatory law.  There was also concern about the fact that King & Spalding touts itself as a gay-affirming employer that values diversity, and concern that many of its contracts are with companies which have specific policies in place forbidding discrimination on grounds of sexual orientation.  Some of these companies appear to have been leaning on King & Spalding to reconsider its defense of DOMA.

Clement is seeking to claim the moral high road as he continues the DOMA defense, and is noting that he is standing for the right of any client in the American court system to a robust legal defense.  A number of significant voices are being raised now to support Clement and that right, including that of Attorney General Eric Holder and influential gay blogger Andrew Sullivan, who is doing a series on his Dish blog about the tensions in the gay community between those who argue that discrimination does not deserve a legal defense, and those who argue as a matter of principle that everyone has a right to a defense.

John Aravosis at AmericablogGay, who is an attorney himself, disagrees, and has been posting a vigorous series of commentary defending King & Spalding's decision, and rebutting the arguments of Clement and his defenders that they represent principle and the moral high road.  As Aravosis has noted, it would be interesting to ask firms like Bancroft and all those defending the right of a client to a defense whether they'd defend segregation with the same alacrity with which they're now seeking to defend a law that many Americans regard as, on the face of it, discriminatory against a minority group. 

As I wade through these articles and consider both sides of the debate, I recall vividly a number of heated discussions I had with my father about precisely these issues when I was an adolescent.  My father was a small-town lawyer, and was determined that I would follow in his footsteps.

When it became apparent that I was not interested in the law (or the other approved professional study my parents persistently dangled before me--medicine), my father and I routinely locked horns in my final years of high school.  The repeated arguments centered around what he did as a lawyer, and why I ought to respect that and consider it my own future.

From my side, there was one constant, overriding argument about what my father and other attorneys I knew did: over and over again, I would ask my father how it was possible knowingly to defend someone you knew beyond a shadow of a doubt to be guilty of some heinous crime.  How do lawyers put themselves at the service of morally reprehensible, slimy groups and individuals, I asked my father repeatedly, while claiming that they are doing a noble thing in doing so?

In these showdowns, I've invent the worst possible case scenarios--a man coldly murders his wife to get his hands on her life insurance, then absconds with their daughter, a child, whom he rapes repeatedly.  Would you defend him?

And my father would routinely respond to each horrific scenario I could put before him, "Of course.  Everyone has a right to a defense."

Because we lived in a part of the country in which serious cultural and legal battles were being fought over the issue of integration--this was the 1960s, when the Civil Rights act finally broke the back of legal segregation--some of the scenarios dealt with questions about the Ku Klux Klan and known racial terrorists.  These were pointed and very existential questions for my father and me, and he knew this very well: as I think I may have mentioned in at least one previous posting on this blog, when I was in high school, my father ran for a judge's position in our area.

And when he did so, he made me go on the campaign trail with him.  On one occasion, as he was campaigning, he disappeared into the back of a local barber shop with a group of men and held a private meeting of an hour or so.  When I asked him later who the men were and why they had secluded themselves in the back of the barber shop, he told me they were Klansmen, and he had promised them that if they gave him their support, he'd look out for their interests as a judge.

This was an eye-opening experience for me.  It taught me (or reminded me, since I had already learned this in various ways as an attorney's son interacting with other attorneys and judges in our small town) that the judiciary is hardly ever free from the taint of prejudice, from the effect of backroom deals cut by candidates for judges' positions with shady groups fomenting hatred and defending discrimination.  I learned in interacting with my father and observing how he did business as a lawyer that lawyers (many if not most of them, I concluded) routinely side with and defend those who have the upper hand in their community, against those who are beaten down by the power structures of a community.

I learned, in other words, to view the claim that lawyers are doing a morally admirable and noble thing when they defend any and all comers for a legal defense with, shall we say, a somewhat critical and even cynical optic.  And I must confess that the shit-detector hermeneutic of suspicion I developed in my adolescent discussions of the legal profession with my father kicks in now as I read all the defenses of Paul Clement and Bancroft as the current moral heroes of the DOMA debate.

Please forgive me if I don't buy this rhetoric.  Not a bit.  Everyone may deserve a defense.  But not every cause deserves a defense.  We're clearly at a tipping point in American society akin to the one I lived through in the 1960s as legal segregation was struck down throughout the U.S., and it became increasingly unfashionable and even reprehensible to try to mount open defenses of racial prejudice and racial discrimination in American culture.

White Southerners fond of segregation--people like my own father and many members of my family--had aat that point, whether they liked it or not, to get used to the change in the moral climate of the country.  They had to get used to the fact that they were no longer the moral rulers of society, and that the rules by which they played were flawed--that these rules might serve their own interests, but not the interests of many human beings who were now being recognized by the law as fully human persons with the same legal rights any person deserves.

A similar cultural shift is now taking place in the U.S. vis-a-vis LGBT rights.  I would urge Paul Clement and all this who see him as a noble exemplar of the best moral values of our culture to get used to that shift.  And to stop already with the attempt to present themselves as high-minded people fighting for what is right and best.  Because not too long down the road, they're going to be seen by the vast majority of right-minded citizens as morally dubious agents who defended gross discrimination--every in the way we now view George Wallace or Lester Maddox or Bull Connor or Jesse Helms.

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