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Law Firm Drops Defense Of DOMA

The law firm hired by House Republicans to defend the federal ban on gay marriage has withdrawn from the case, prompting the partner in charge of the case to resign.

Former Bush administration Solicitor General Paul Clement, a partner at the Atlanta law firm of King & Spalding, was hired to lead the court case in support of the Defense of Marriage Act, known as DOMA. He was hired by House Republicans after the Obama administration notified Congress that it would not defend the constitutionality of the law. But the law firm soon found itself the object of harsh criticism from gay-rights activists, complete with threats to target clients and recruits.

On Monday, the firm reversed itself and withdrew from the case, prompting Clement's resignation. The former Bush administration lawyer said he quit the firm "not because of strongly held views about this statute." Rather, he said, "I resign out of the firmly held belief that" a lawyer should not abandon his client "because the client's legal position is extremely unpopular in certain quarters."

King & Spalding Chairman Robert Hays said that the decision to withdraw came after a determination that the firm's vetting process was "inadequate."

But in his resignation letter, Clement said that "if there were problems with the firm's vetting process, we should fix the vetting process, not drop the representation."

"I would have never undertaken this matter unless I believed I had the full backing of the firm," Clement said. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

More important than any one issue is the idea that we have an adversary system of justice, and it just doesn't work if you say that defending one side of the controversy is completely out of bounds.

"More important than any one issue is the idea that we have an adversary system of justice," Clement said in an interview with NPR, "and it just doesn't work if you say that defending one side of the controversy is completely out of bounds."

Clement has joined Bancroft PLLC, a law firm founded by fellow Bush administration official Viet D. Dinh, and plans to continue representing the House in defense of DOMA.

The controversy over the DOMA defense is reminiscent of the rumpus four years ago when a Bush Defense Department official publicly urged corporations not to give legal work to law firms that represented Guantanamo detainees. There was a big pushback from the legal community back then. It remains to be seen whether the same thing will occur this time.

NYU Law professor Stephen Gillers, a specialist in legal ethics, says Clement was "entirely right," and that "King & Spalding was scared off by the prospect of becoming a pariah." Former Clinton administration Solicitor General Seth Waxman, whose firm is on the other side of the DOMA case in opposition to the law, added that Clement's representation in support of DOMA "is in fact in the very highest and finest traditions of our legal system."

But some lawyers seemed to take a pass on the question. James Esseks, director of the ACLU's Lesbian, Gay, Bisexual & Transgender Project, said in a statement that "no matter who represents the House Republican leadership, we're confident that the courts will recognize that the so-called 'Defense of Marriage Act' is discriminatory and unconstitutional. Congress should not be wasting scarce resources on high-priced lawyers to defend this law, but instead should stand on the right side of history by ... repealing DOMA once and for all."

Some gay-rights activists saw King & Spalding's withdrawal as a victory.

"Many of us were stunned, shocked and angered when it became known that King & Spalding had taken on this case, and we are gratefully relieved to find out they had withdrawn," said Jeff Graham, the executive director of the gay-rights group Georgia Equality. "The legal case is something that is really a thinly veiled political attack on gay and lesbian couples and families."

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.