The DOMA Sideshow

In 2011, an enormous outcry ensued when the law firm of King & Spalding (K&S) abandoned the Republican leaders of the House of Representatives in U.S. v. Windsor, the case in which the Defense of Marriage Act (DOMA) was struck down. Paul Clement, the star litigator in charge of the case, resigned from the firm and published a letter accusing it of caving in under pressure from gay rights groups, which organized a campaign to convince the firm to withdraw. A chorus that included law professors, government lawyers, editorial boards, pundits, the incumbent Attorney General, and a sitting Supreme Court Justice joined him in condemning K&S. Even though many of these speakers opposed DOMA — and the Attorney General had refused to defend the statute in-house — they praised Clement for standing by the Bipartisan Legal Advisory Group (BLAG) heroically and accused the LGBT community of bad behavior. By attacking K&S, they argued, gay rights groups had undermined the civil justice system, which depends on zealous advocacy for all sides. These groups were also said to have endangered vulnerable clients by legitimating the use of a tactic that would make it harder for them to find lawyers. Clement had bravely set an example for all lawyers by steadfastly supporting a client under siege. This Article argues that both the criticisms heaped upon K&S and the LGBT community and the praise lavished upon Clement were mostly unwarranted. Clement was not shown to be a hero, that is, a person who bravely incurs a serious risk of personal loss for the benefit of another. K&S’s action was proper because it withdrew without harming BLAG, because it had no duty to remain engaged, and because it was a poor fit with BLAG. The firm can legitimately be criticized for having allowed Clement to jump the gun by signing the contract to represent the House of Representatives before the firm’s new matter review process was completed. And having done that, the firm can also be criticized for allowing business concerns that were known or predictable in advance to influence its decision to withdraw. But in volume and intensity, the condemnations that were heaped upon K&S were excessive. Finally, the actions of the gay rights organizations threatened neither to undermine the civil justice system nor to make legal services harder for vulnerable clients to obtain. The fact that K&S was engaged by a client to handle a litigation matter afforded no reason for gay rights advocates to refrain from holding the firm accountable for its engagement to BLAG. This Article does not criticize Clement for remaining loyal to BLAG. It does contend that his did something ordinary, not something heroic.