WASHINGTON – In a stunning reversal, the law firm of King & Spalding has filed a motion to withdraw from the defense of the federal law called the Defense of Marriage Act (DOMA), which the Obama administration has determined is discriminatory.
The Atlanta-based law firm had come under considerable heat from gay rights groups and their allies for agreeing to defend challenges to DOMA, which essentially creates two separate but unequal groups: Opposite-sex couples who get full rights, and same-sex couples who are denied more than 1,200 rights that opposite-sex couples get.
King & Spalding said today that it did not properly vet the process of taking on the DOMA defense, which is being upheld by the Republican House leadership and not by the full Congress. The Justice Department has already determined that it would not defend DOMA in a dozen lawsuits around the nation.
“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. Last week we worked diligently through the process required for withdrawal,” King & Spalding Chairman Robert D. Hays said in a statement this morning.
“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.”
The law firm’s decision was hailed by gay rights groups.
“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,” said Joe Solmonese, president of the Human Rights Campaign.
“Speaker Boehner is likely to pursue continued defense of this odious law. However, law firms that value LGBT equality should remain committed to those values,” Solmonese said.
Lambda Legal also saluted the law firm for withdrawing.
"Today, we learned once again that it is a bad idea to defend antigay bias and discrimination in court, and fewer and fewer people are willing to do it,” said Jon Davidson, legal director of Lambda Legal.
“We welcome the news that the law firm, King and Spalding, has decided to withdraw from the engagement to represent House leadership in defending DOMA. We were very surprised and disappointed when King and Spalding accepted this assignment, because they have been supporters of LGBT equality in the past.
“We thought we might have to face them in court as adversaries in our case, Golinski v. OPM - and we were ready to do that. But I guess their sense of justice got the better of them - and that's good news for all of us,” Davidson said.
"Some attorney will no doubt accept this job and defend DOMA in court on behalf of the House leaders - that's the way the legal system works. We're just glad it is not a law firm that has shown respect and support for their own LGBT attorneys, for our community and for our fight for equality. We welcome the firm back to the right side of history."
Freedom to Marry also applauded the move.
"In America, every person deserves a defense, but not every position does. King & Spaulding has recognized what President Obama, the Department of Justice, and many members of Congress have joined Freedom to Marry in concluding: federal marriage discrimination and the so-called 'Defense of Marriage Act' are indefensible," said Evan Wolfson, founder and president of Freedom to Marry.
“Freedom to Marry commends the many voices within the firm and outside, including the Human Rights Campaign, who spoke up against firm’s hasty and wrong-headed decision to take on the defense of discrimination. DOMA is an odious, oppressive law passed to exclude loving and committed couples from equal respect for their marriages; it cannot be defended without reliance on stereotypes and fears that do not stand up under the Constitution. The House leaders pushing this abuse of taxpayer money to find a hired gun to defend DOMA should follow King & Spaulding’s lead and reconsider whether they really want to be on the side of unfairness and the wrong side of history,” Wolfson said.
Not long after King & Spalding announced its reversal today, the law firm lost one of its members. Attorney Paul Clement, who was Solicitor General for President George W. Bush and who was going to defend DOMA in court for King & Spalding, announced that he was leaving the law firm.
“I resign 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,” Clement said in a statement. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
Not long after Clement’s news went public this morning, Bancroft PLLC, founded by former Assistant U.S. Attorney General Viet Dinh, announced the Clement would be joining the small law firm based in Washington, D.C.
So far this morning, the GOP House leadership, headed by Speaker John Boehner, has not reacted to the rapidly developing news.