After publishing articles recently in the Washington Post
and First Things,
both arguing that the defenders of conjugal marriage between a man and a woman should
not be tarred as irrational bigots, “haters,” or “theocrats”
by the advocates of same-sex marriage, I received e-mail messages from likeminded
friends hailing me for my “courage.”
I was grateful for their appreciation, but a
little mystified at what I took to be overstatement. I find little reason to hail
the “courage” of someone who defends the consensus view of the whole history
of human civilization–that marriage is a bedrock social institution that unites
a man and a woman in order to make a family–as rational and well intended. But
one of the kind notes came from a friend who was about to leave for Cuba to help
beleaguered Christians there, persons of whom the word “courage” can be
used without embarrassment. So what was going on?
It was simple: my correspondents were academics,
writing from within the establishment of American higher education, where it can
be very uncomfortable to speak out against the idea of same-sex marriage. Are people’s
jobs on the line if they dissent? This is harder to say with certainty, and the
circumstances will not be the same everywhere. The deadly combination of unchallenged
liberal presumptions and casual intimidation of dissenters is probably at its worst
in the most prestigious universities, which set the tone for the rest of the country,
on this issue as on many others.
But in all except the most resolutely religious
colleges, there is no doubting that the default position of the American academy
is to dismantle the institution of marriage and remake it on a new basis. The result
is a good deal of self-silencing–self-exile into the “new closet” on
issues involving sexuality–not just by students but by faculty, too. The path of
least resistance turns out to be the path of no resistance. For institutions that
claim to be homes of diverse views and free inquiry in the pursuit of truth, this
creeping orthodoxy is a sign of wounded institutional integrity and failed leadership.
The same harm to institutional integrity, and
the same ethical failure of institutional leaders, is now publicly on display in
the most elite precincts of the legal profession. On April 18, the press reported
that Paul Clement, former solicitor general in the last administration, would take
up the cause, so contemptibly abandoned
by the current administration, of defending the Defense of Marriage Act in federal
litigation, with Clement’s firm, Atlanta-based King & Spalding, engaged by the
House of Representatives.
One week later, on April 25, King & Spalding’s
chairman Robert Hays announced
that the firm was withdrawing from its representation of the House, apparently leaving
DOMA’s defense without legal counsel in federal court. Notwithstanding the blandishments
of Mr. Hays about “inadequate” vetting of the decision to take the case,
it was evident to everyone that this retreat was made under pressure, with the gay
advocacy group Human Rights Campaign leading a concerted political and economic
campaign to bring the firm to heel. Within an hour or two on the same day came the
news that Clement was decamping from King & Spalding to take new employment
at Washington’s Bancroft law firm, and intended to continue his representation of
the House, and of the interests of the United States, in the DOMA litigation.
In his letter of resignation
from King & Spalding, Clement describes his conduct as the only “honorable
course,” saying he was driven by “loyalty to the client and respect for
the profession” of law. “Defending unpopular positions is what lawyers
do,” he wrote, adding that the “adversary system of justice” and
“the rule of law” itself are at stake. Clement finished by quoting the
late Griffin Bell, once a King & Spalding partner as well as attorney general
in the Carter administration: “You are not required to take every matter that
is presented to you, but having assumed a representation, it becomes your duty to
finish the representation.”
Supporters of the Defense of Marriage Act were
quick to hail Paul Clement’s courage, and he certainly deserves praise for his unhesitating
decision to do the right thing. But it detracts not at all from Clement’s rectitude
to remark that there was nothing heroic in it. He did what any lawyer would do who
conformed his actions to the time-honored ethical norms of his profession. Lawyers
and law firms accept and reject clients for all sorts of reasons, including moral
affinities and moral objections, political sympathies and ideological opposition.
But once a lawyer has been engaged as a client’s
advocate, a relationship is created for which words like “duty” and “honor”
are exactly the right ones. Clement rightly understood that this duty demanded he
sacrifice any competing claims on his loyalty of his law partners, and leave the
firm. What this cost him we cannot know, but again, his action was an ordinary sort
of courage, not an extraordinary sort.
What is extraordinary, and therefore worthy
of more of our attention, is the behavior of King & Spalding and the leadership
of its chairman Robert Hays–as well as the behavior of the political activists
at the Human Rights Campaign and elsewhere who embarked on an open campaign of intimidation
that is morally reprehensible in a constitutional republic.
It appears, from other cases taken on by King
& Spalding, such as its pro bono representation of unlawful enemy combatants
detained at Guantanamo, that the firm’s politics lean leftward. But again, lawyers
and law firms accept and decline clients and causes for many reasons, and political
ideology is not an illicit ground of such choices. Knowing this might inform one’s
judgment if one of its partners ran for public office, or were nominated for attorney
general, and it might incline certain clients to seek representation there or to
But it is not in itself blameworthy to undertake
the representation of clients and causes of whom others disapprove. As Paul Clement
himself said, this is what lawyers do–and what someone in the profession must do,
if the adversary system of justice, central to our rule of law, is to function well.
What is blameworthy–indeed, squarely inimical
to the norms of legal practice–is for a firm’s leaders to buckle under political
pressure and abandon a client they have agreed to represent. King & Spalding’s
withdrawal may even have violated various
codes of legal ethics. But even if no codified norms were breached, the
firm’s decision to bug out on advocating the constitutionality of DOMA is deeply
troubling as a failure of institutional responsibility.
And it is not merely the law firm as an institution
that should concern us here, although the firm is one kind of institution (and the
larger it is, the more “institutional” any firm looks). It is the institution
of the law itself that is at stake. Mr. Clement might seem to have been engaging
in hyperbole when he remarked in his resignation letter that the rule of law was
harmed by the firm’s decision. But he was not.
Those of us who are not lawyers, hope never
to need one, and enjoy a good joke at the profession’s expense might be loath to
admit it, but the rule of law depends to a great degree on the probity of lawyers
and judges. Law graduates, when admitted to the bar, become “officers of the
court,” and this is no quaint honorific like “esquire.”
Each time they assume the burden of advocacy
for a client, they also take on a duty to the court of the jurisdiction in which
they practice on the client’s behalf. The lawyer is the conduit through which the
client’s interests are communicated to the court, and, in the opposite direction,
through which due process is meted out to the client. Just as the judge is expected
to have no conflicts of interest in the case before him, the lawyer representing
a party is expected to have no interest whatsoever that can be distinguished from
those of his client. The judge must be disinterested in the outcome, but the advocate
must have, and appear to have, an identity of interest with the client and cause
on whose behalf he advocates.
Once assuming this burden, his own private,
competing impulses to separate himself from his client must vanish from his calculations,
for his duty is a public one, vital to the provision of due process, and, for that
reason, is of the utmost solemnity.
Thus the King & Spalding skedaddle is more
than an unseemly ditching of a client in order to escape the heat of political pressure.
It is a blow to the institutional integrity of the legal system, and this would
be true even if the abandoned party were not the United States itself. The firm
will rightly suffer in reputational terms, but is no doubt big and established enough
to survive the self-inflicted wound.
But what is behind this unexpected caving of
such a large and well-esteemed law firm? If King & Spalding’s leaders exhibited
cowardice and a failure of integrity, it is worth our noticing that they were bullied
into it by the organized enemies of DOMA, led by the euphemistically named Human
Rights Campaign (HRC).
It is increasingly clear that the movement for
same-sex marriage has no regard for the ethical norms of institutional integrity
that ordinarily govern the processes of republican self-government in the United
The day after King & Spalding was reported
to be taking the DOMA case, the HRC launched a high-pressure
campaign to force the firm to reverse its decision. This was too much
even for the liberal editors of the Los Angeles Times,
who oppose DOMA but recognize a principle when they see one. Ditto the editors of
the Washington Post,
who chastised HRC after the success of its campaign of intimidation.
But intimidation–“mau-mauing the flak-catchers,”
Tom Wolfe memorably called it–is now the default tactic of same-sex marriage advocates.
What else, for instance, explains the antics
of now-retired federal judge Vaughn Walker, who wanted to broadcast the Proposition
8 trial in California, and then broke his promise–and
his legal duty–to keep the trial’s video record from public view? What else explains
the instantaneous denunciation of all opponents of same-sex marriage as “haters”?
Resistance to such intimidation, in the name
of the ethic of institutional integrity, is fast becoming the duty of all persons
in positions of institutional responsibility, whatever their private views on homosexuality
or same-sex marriage. When we witness such principled resistance, as in the case
of Dean Evan Caminker’s
decision to stick with Ohio Senator and alumnus Rob Portman as the commencement
speaker at the University of Michigan’s law school–despite the outcry of those
who object to Portman’s 1996 vote for DOMA as a House member–we should applaud
A sage older colleague of mine is fond of saying
that integrity is something you can have just by deciding to have it. But you do
have to decide. It’s that easy, and that hard. But those who would sacrifice ethics
and the integrity of our institutions to the victory of a political cause must be
sharply rebuked by fair-minded conservatives and liberals alike.
Matthew J. Franck is the Director of the William
E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon
Institute. This article has been republished with permission from Public Discourse.
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