The Difference Between Defending DOMA and Neo-Nazis and the ACA
by Beverly Mann
The Difference Between Defending DOMA and Defending Neo-Nazis and the ACA
A post via Blog of Legal Times on Wednesday titled “King & Spalding Offers New Details on Marriage Mess,” which summarizes a report that day in one of its sister ALM (American Law Media) publications, the Atlanta-based Daily Report Online by staffer Meredith Hobbs begins (subscription needed):
The head of King & Spalding’s Washington office is accepting blame for what he calls the “misunderstanding” that led the firm last month to accept, and then drop, the U.S. House of Representatives as a client in same-sex marriage litigation.
(Rdan…slight corrections for readability and sourcing original material)
King & Spalding is a mega-law-firm based in Atlanta that in late 2008 won the derby to hire Paul Clement, Bush’s solicitor general since 2005 who had left the Justice Dept. in June 2008, to head its Supreme Court and appellate division. The deal involved a reported $5 million signing bonus, well worth the price because petitions (known as “cert.” petitions) asking the Supreme Court to agree to hear the case, when filed on behalf of clients by former Justice Dept. solicitors general—the Office of Solicitor General is the division of the Justice Dept. that argues cases before the Supreme Court on behalf of the United States—are guaranteed to actually be read by the justices, and the Court is more likely to grant the petition to hear the case even than petitions filed by former law clerks to Supreme Court justices. Which is saying quite a bit, because former law clerks to Supreme Court justices now hold a near-monopoly on getting private clients’ cert. petitions granted.
Clement, in keeping with modern tradition for former solicitors general, is a two-fer. He clerked for Scalia for a year after clerking the year before—his first year out of law school—for a lower federal appellate judge, a de facto prerequisite to a Supreme Court clerkship. So he’s really, really valuable to clients who want their cert. petitions read by justices, and granted. And to law firms that want to be known as a “presence” at the Court.
The referenced marriage mess is that last month, after the Obama administration announced that it (i.e., the Solicitor General’s office) would not be defending the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, against lawsuits challenging the statute’s constitutionality, a group of Republican House members hired Clement to represent them in defending the statute’s constitutionality, notwithstanding that they’re not parties to these lawsuits. But Clement signed the retainer contract without first getting authorization from the firm’s five-member committee that vets potential new clients and cases. And the contract itself contained an unusual and weird clause, now infamously known in legal-pundit circles as the “gag” provision, barring employees of the firm—attorneys, staff members and, I guess, the mailroom folks and couriers—from speaking ill of the statute.
When mass mutiny, by firm employees and corporate firm clients, including longtime client Coca-Cola (virtually all of the firm’s clients are corporations), threatened, upon the public announcement of the firm’s representation, escalating in intensity after the gag provision was disclosed, the firm announced that it would attempt to withdraw from the representation. The firm said the prospective representation hadn’t been submitted through the firm’s normal channels and hadn’t been vetted, and that, had it been, the firm would have declined the case. Clement, in turn, saying he had been led to believe that the firm supported the representation, resigned from the firm, saying that he could not ethically withdraw his representation. He joined a small firm comprised mostly of former Bush administration War on Terrorism veterans.
He then issued a public statement, seconded by several legal pundits, including some, such as Slate’s Dahlia Lithwick, whom I admire and whose writings I usually agree with, argued that it sets a dangerous precedent for a law firm to succumb to public pressure to decline to represent (or, as here, to withdraw from representation of) an unpopular client or an unpopular cause.
I’ve admired Clement himself, actually. As solicitor general, he was not an automatic supporter of rightwing legal positions when the Supreme Court, as is its custom, would ask the Solicitor General’s office for its view on whether the Court should agree to hear a particular case, usually concerning interpretation of a federal statute, in a case in which the federal government is not a party. The solicitor general is not the one who makes the final decision on this; the attorney general and sometimes the president himself is, if the issue is important ideologically or for, say, law enforcement purposes. But in cases in which it seems likely that the decision was left up to Clement, he didn’t always favor the conservative position.
In one important access-to-court case, for example, Winkelman v. Parma City School District, Clement filed a brief in support of a cert. petition filed by the parents of an autistic child who tried, without retaining counsel, to sue their local school district on their son’s behalf asking for injunctive relief to force the district to comply with a particular provision of the Individuals with Disabilities Education Act that the parents said the district was ignoring. The issue was whether the parents could “represent” their son in the lawsuit or whether instead they must hire a lawyer to that, rendering the right to sue dependent on the family’s ability to pay substantial legal fees. The Court, probably persuaded partly by Clement’s brief, agreed to hear the case, and, then probably influenced by Clement’s friend of court brief after the Court agreed to hear the case, ruled for the parents and their son. The opinion has implications for similar access to court by, say, elderly adults “represented” as “next friend” by one of their adult children, and asking for injunctive relief under various laws.
And in another case involving access to court by the non-wealthy, Clement, during his King & Spalding years, argued—unsuccessfully—in favor of possible higher contingent compensation from losing governments under certain circumstances, under a federal statute that requires a losing government in a constitutional civil rights case to pay fair-value attorneys’ fees to the lawyer who represented the plaintiff. Currently, he is among the lawyers representing a group of California state prisoners before the Supreme Court in a case in which the prisoners won on their claim for injunctive relief in the lower federal courts, claiming that California’s decades-long, extreme overcrowding in their prisons caused a lack of adequate health care so severe that it resulted in numerous deaths, in violation of the Eleventh Amendment’s prohibition of cruel and unusual punishment.
And Clement’s not just a “name.” Judging from journalists’ reports on his recent high-profile oral arguments at the Court, he strikes me as brilliant analytically, and he’s wonderfully quick-witted.
So I was disappointed when a few weeks before the DOMA controversy broke, it was announced that he would be representing the challengers to the Affordable Care Act’s constitutionality on appeal in the case in which a federal trial-court judge in Florida pronounced the entire statute unconstitutional earlier this year. It’s not that the Supreme Court justices will actually cast their vote based on any argument that has not already been made and thoroughly dissected. But if anyone can make a Supreme Court majority vote to strike down this law as unconstitutional seem like anything but Bush v. Gore redux, it is Clement.
But my disappointment about his representation of the ACA challengers is just a personal one. After all, in the ACA case, he’s playing a standard role as counsel, representing clients who claim that Congress exceeded its constitutional authority and that the result violates their individual rights.
In fact, the classic examples used to skewer King & Spalding’s action in the marriage mess all are of cases in which the lawyer is attempting to help an unpopular individual or group vindicate a constitutional right—the right of an accused mass murderer to a fair trial; the First Amendment right of neo-Nazis to march through Skokie, Illinois, then home to a substantial number of Holocaust survivors; recently, the claimed First Amendment right of the members of that absurd Kansas-based church to protest gay rights by parading at the funerals of soldiers killed in action in Iraq or Afghanistan, holding signs saying that the death was god’s retribution. (E.g., “Thank God for dead soldiers.”)
But every time I read a new contribution to the body of literature on the marriage mess, I wonder momentarily whether Clement’s decision to represent the group of House members, and the law firm’s decision to remove itself from that representation, really are the equivalent of, say, the ACLU lawyers who represented the neo-Nazis in the Skokie-march case and the people who thought the ACLU should not have represented them.
The neo-Nazis’ own cause, the message they wanted to spread, was abhorrent, but the cause the lawyers were championing was free speech. Clement, in his public statement, said his own opinion about the propriety of the DOMA as statutory policy is irrelevant (and sort of hinted that he personally doesn’t favor that legislation). And he’s right, of course; all that’s at issue is whether the statute is constitutional.
But I think he’s wrong that there’s no distinction between a lawyer’s representation of a party whose rights are at issue and a non-government lawyer’s representation of a group of members of Congress in order to defend the constitutionality of a law whose intended effect is to constrain the rights of others. What’s different is, first, that legal representation of members of Congress who are claiming that a statute is constitutional is more like a legislative or lobbying act than legal representation of a client. That’s true even when the purpose of the statute at issue isn’t to limit others’ rights. And, second, when, as here, the sole purpose of the statute is to limit others’ rights, it’s really not equivalent to representation of a party who’s own rights are at issue and whose case might, if that party is successful in the litigation, expand the rights of others.
I don’t suggest that there is something wrong with Clement’s decision to accept the case. What I do suggest is that the decision was more freighted with substance than the quick analogies suggest, and that King & Spalding was not wrong to view it that way.
Rdan,
You make a few mistakes in an otherwise insightful post.
First, DOMA is not a ‘right-wing legal position.” Its the law of the land signed by (D) President Clinton. Its neither right or left wing. And I was most disappointed in the refusal of Pres Obama AGs from defending the law. That sets a very bad precedent for Presidents and AGs to decide which laws they wish to defend in the future – they should be defending all Fed laws without prejedice. If the Dems and President Obama wanted to change the law their overwelming congressional majorities before the 2010 election could have gotten it done in a heartbeat regaurdless of R wishes. That’s how you change the law. The executive branch shouldn’t be picking and chosing what it wants to defend. How would you feel if in 2013 a (R) President decided not to defend the ‘left-wing legal position’ that Obama-care was constitutional? Think about it.
Secondly, their is no ‘right’ involved here. Homosexuals have no more right to be married than I have of marrying my sister. What we are argueing over is if homosexuals, meeting all the other government requirements, are allowed automatic access to the package of government benefits commonly called ‘marraige.’ (You can also go down to your local lawyer and draw up those same legal documents for under a grand.) The government can dispense these benefits any way it choses – it hands out benefits all the time that are not universal and are discrimatory. A simple example: it is perfectly legal for the US government to hand out $500 to every blue-eyed blond female between the ages of 20-25. In this case the government hands out a collection of benefits, called ‘marraige’, to people meeting certain requirements. But no individual has a ‘right’ to be married. Thus there are no ‘rights’ to be limited. (Lawrence ensured you can live with anyone you wish).
We had a long discussion on this a few years back. (And for the record I think gays should be allowed to get married).
As for King and Spaulding, they bent to the whims of their monied clients. No big surprise here. Clement shoud be applauded for his actions.
Islam will change
Buff:
rdan did not write this essay, Beverly Mann. She is a constitutional attorney who has written for my case also. Indidviduals have a right to be individuals as long as they cause no harm to those around them. The marriage of two consenting males or females causes no harm to those around them. What is being practiced today is the tyranny of the majority (John Stuart Mill) to limit the rights of a minority to be individuals and to be people in their own right who cause the mjority no harm. They cause you no harm whether married to same sex or one f their own. It is our own prejudices coming into play which restricts those few around us from being individuals.
Clement is a pawn in this case of moneied interests.
Bev:
It is disappointing to me as a litigate to know the only way I can gain access to an unbiased decison is biased on who represents me and the alternative is to hire a clements or erwin of name to gain justice in a court which I sponsor. Gideon died a free man and I will die not having the justice I seek. It is a joke the supremes and the court system which is skewed to the money and who knows who. No longer can a man pen a letter to the courts with the hope a justice of importnce will read it and grant them a boon of hearing and justice.
Good post
My bad…I left Beverly’s name out for a bit then added it in. Sorry to all.
Sorry about getting the name wrong. Beverly wrote a very insightful post.
run – I agree individuals have a right to be individuals as long as they cause no harm to any around. Totally agree and the Supreme’s finally got it right with Lawrence. That is totally different from getting a basket of benefits from the gov. called marraige. You have no right to those benefits and can be arbatrarily denied them for any reason. I can’t marry my sister, or some one that’s 10 years old. Homosexuals are free to live with whomever they want right now. Heck there is no law anywhere that prevents 10 guys living together and having giant sex parties every night as long as they keep it down and don’t scare the neighbors dogs. But they can’t call it marraige or get the benefits.
Homosexuals do not have a right to be married. That’s my point.
Islam will change
run,
Your point here is even more depressing than anything else in the post. Excellent point.
buff:
If I was not a good father who loved his son, I would have abandon him to those who would lie and seek justice based upon their interpretation of the laws to gain a win and a conviction. If you learn anything from what I write, understand that going to court is the worst place a simple man or woman can go to for the truth or justice. Justice is not equal and it is skewed to those who have influence. I was fortunate enough to have the Beverly Manns, the Jack Daniels, an Alaskan judge, and Erwin Chemerinsky listen to my story and understand my complaints.
I mean no malice to you. The days of Giden writing a letter to the courts and gaining access to SCOTUS died with him and are long gone. The justice system is dead for you, I, and most who re not of influence.
run,
I totally agree that going to court should be always the last resort if possible. Once in the sausage grinder you cannot rely on what comes out the other end. The more and more revelations abot DSK coming out highlight your point that their is two justice systems in the world. Just another anedote that proves your point. (I had my blinders removed a long time ago in college, another long story of sons of privilede getting a seperate justice than others).
I don’t get the reference about Giden. Sounds interesting, but google doesn’t lead me anywhere. You have a better link/search terms?
And I have found that Mr. Jack Daniels always listens…. 🙂
Islam will change
Make that “Atlanta-based Daily Reporter Onlline,” not “Altanta basd Dailey Reporter Online”. Damn!
Obvious misspelling of a name:
“If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell . . . to write a letter to the Supreme Court . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case . . . and the whole course of American legal history has been changed.” —Robert F. Kennedy
While in prison, Gideon, using law books available to him, drafted a petition for writ of certiorari to the U.S. Supreme Court. (The petition is the legal document in which a person requests the Supreme Court to hear an appeal. The Court has the discretion to accept or decline the appeal.) According to Anthony Lewis’s acclaimed book on the case, Gideon’s Trumpet (1964), in the handwritten petition Gideon stated that it “just was not fair” that he had no lawyer at his trial. The petition was granted, and Abe Fortas, who would later serve as an associate justice on the Court, was appointed to argue Gideon’s case. http://legal-dictionary.thefreedictionary.com/Gideon+v.+Wainwright
Whoa there, buff. First of all, DOMA is both a social-conservative position AND a law that was signed by President Clinton. Clinton signed into law a number of culture-wars-type conservative bills enacted after the Republican takeover of Congress in early 1995, especially during the period between early ’95 and the 1996 election, but afterward also, as tradeoffs for Congress’s agreement to a few things he wanted.
Second, Obama decided against having his Justice Dept. argue for the law’s constitutionality because he believes the law’s purpose and intent is to discriminate against a particular group of Americans, without a constitutionally permissible reason to do so, by denying that group the right to enter into a marriage with a consulting adult of his or her choice—a very significant legal right that all other Americans have. The single exception is incest, but there is a constitutionally permissible basis (in legal terms, a compelling governmental interest) for the legal prohibition against incest: that the offspring of parents who are close relatives are likely to have significant genetic defects. You’re right that homosexuals have no more right to be married than you have of marrying your sister, under the laws of most states and under DOMA, but that begs the question of whether the legal bars to homosexual marriages violate certain constitutional rights.
As for your claim that marriage is a government benefit that is not a right, that’s simply wrong as a matter of law. In an interview published just yesterday on Politico’s legal-issues blog, Ted Olson, who represented Bush in the Supreme Court in Bush v. Gore and then was Bush’s solicitor general during Bush’s first term, but who now has joined with David Boies, the lawyer who represented Gore in Bush v. Gore, to represent the gay couples who are challenging the constitutionality of California’s Proposition 8 law barring gay marriage, said: “The Supreme Court–14 times since 1888–said the right to marry is a right of liberty, privacy, association, spirituality and identification of ourselves and what we are.”
I think you’re conflating the right to marry—which clearly is a right that most people have, here and everywhere else in the world—with the legal benefits of marriage. And the legal benefits of marriage certainly is an important reason why gays want the same right to marry that everyone else has. And you’re clearly wrong that gays can simply contract between themselves to give each other those benefits. They cannot contract for Social Security or defined-benefit-pension survivor benefits, nor for health insurance benefits accruing from the relationship, nor rights that spouses of hospitalized people have that hospital rules give only to spouses, or a variety of other benefits of marriage.
The Supreme Court justices clearly have made a conscious decision to delegate to a tiny group of big-name Supreme Court practitioners—a group to which almost no one other than large corporations and very wealthy individuals, and a few indigent convicted criminals (usually with death-penalty sentences) whose case somehow gained the attention of one of these lawyers—as their case screeners. No other private party need apply. There are exceptions each year, but they are shockingly rare.
One result is that the Court denies one after another after another cert. petition asking the Court to consider whether the lower appellate courts are properly interpreting, say, a particular procedural rule—usually a Court-created “doctrine” that results in the denial of access to court by a slew of plaintiffs—until suddenly some mega corporation, in a cert. petition bearing the name of one of the members of the tiny cadre of zillion-dollar-an-hour Supreme Court practitioners, asks the Court to consider the issue. Then, voila! The Court does, and says the lower courts had been misinterpreting the procedural doctrine for many years, sometimes decades. Usually, then, though, the Court draws its opinion so narrowly that the lower courts apply the new rule of law only to cases that are virtually identical to that one. Until, years later, another mega-corporation, represented by a Supreme Court “regular,” asks the Court to hold that the lower courts have been misapplying that last rule of law, and the Court agrees to considering the issue, and agrees that, yes, the lower courts have been interpreting that latest rule of law too narrowly and, say, improperly dismissing scads of lawsuits improperly on that basis.
The extent to which judges’ rulings depend upon the socio-economic status of the parties, and the prestige (and hourly fee) of their lawyers—and the absolute de facto requirement that plaintiffs been represented by counsel, is breathtaking. But the issue gets no play in the news media, and most Americans—who would be shocked and disgusted by it, and certainly by the clear fact that that is the tacit policy of the Supreme Court—don’t know this. Anyone who believes that this country’s legal system, whether in criminal cases or civil cases, is more egalitarian and more controlled by the rule of law than the legal system in most other Western-style democracies is naïve. This country’s legal system—that is, threshold access to court and meaningful access to court, including to meaningful appellate review in criminal cases—is controlled and determined almost entirely by privilege.
Buff, run typo’d “Gideon” as “Giden.” He’s referring to the Supreme Court case, Gideon v. Wainwright. Wikipedia explains the circumstances of the case and the Court’s holding, at http://en.wikipedia.org/wiki/Gideon_v._Wainwright.
Thanks – I really didn’t know it was a typo. I will now look it up but sounds fascinating. Looks like Gideon started the entire ball rolling on everyone gets a lawyer.
Beverly,
I think you missed my point. Anyone can call themsleves married today. There is no legal or other restriction from two homosexuals living together and calling themselves married. None at all. They can exchange rings, walk down the aisle and all the rest. (see Lawrence and the subsequent cases) All the restrictions do is prevent two homosexuals from accessing a list of government benefits. Your point about the Supreme Court backing up the right to marry actually proves my point. The Supremes have never invalidated the power of the government to regulate what is ‘married’ and what benefits are delivered by the government.(To my knowledge) We may change the definition of what classes get access to the married benefits (i.e. removing the opposite sex requirement) This case may change that and limit government power in this case. It also may find that, as of the delivery of the judgement, that homosexuals DO have a right to marraige benefits (it has ‘found’ such rights in the past). They may find someday I have a right to marry my sister and get the same benefits. Currently under the law homosexuals do not have a right to marraige benefits and I have seen little if anything saying that the government cannot discriminate on about any reason it wishes. Maybe this case will start the roll-back of government arbitrary discrimination – but I doubt it.
What DOMA does is prevent one state from recognizing homosexual marraige and then all other states also being forced to recognize the same. For lefties who regualrly complain about North Dakota and other small population Red states holding legislation hostage I would think you would support DOMA. Without DOMA if Michigan allowed polygamy to satisfy its Islamic population then everyone would suddenly have to abide by it. Or Utah and the Mormans. (But that doesn’t stop Hugh Hefner from living with two bunnies at the same time – he just doesn’t get the marraige benefits (or Charlie Sheen for that matter).
You say I don’t understand the difference between the right to marry and the legal benefits of being married. I do. Sorry, there is NOTHING that doesn’t allow two homosexuals from living together and calling themselves married. This entire fight is about the legal government benefits, nothing less.
My two main grips about this court cases are 1) the idea that the AG can arbitrily decide which federal Laws the AG wishes to defend and 2) that this is being fought out in the unelected courts and not Congress. Politicizing the AG so blantantly is a major mistake (IMHO) and will have bad repercussions in the future.(Would you have any problem with an Rep Ag declining to defend ObamaCare?). Turning political/cultural decisions that rightfully belong in the legislature over to the courts, which has been occurring more and more since at least Roe, I think is bad for the republic. (YMMV)
“As for your claim that marriage is a government benefit that is not a right, that’s simply wrong as a matter of law.”
I disagree. The Federal government can change the list of benefits that occurs when a couple gets married on a whim (well by passing legislation). “Rights’ cannot be rescinded. The government has many times changed the basket of benefits – and no doubt will do so in the future. You made a list of benefits that cannot be contracted for. I agree. But the Feds can change the law that doesn’t allow SS survivor benefits tommorrow (say as a misguided bugdet fixer). You have no ‘right’ to them. Otherwise the Feds couldn’t just pass a law and have the benefit go away. Same with the rest of your list. There is no right occurred to recieving these benefits – they can be swept away at any time by legislative fiat.
On the other hand you have every right to walk down the isle with whomever you chose and call yourself married. No requirment to go to the local government to announce that – unless your after the benefits. Once you ask for the benefits then you allow the government to decide, totally arbitrarily, what are the conditions for getting those benefits. I can’t marry my step-sister any more than my sister just becuase the biology no longer matters.
This is entirely about the benefits. If it wasn’t we wouldn’t be talking about it. And no one has a ‘right’ to the benefits.
Islam will change