ENDEAVOUR FORUM NEWS WEEKLY ARTICLES
UNITED STATES
PC INTIMIDATION THREATENS THE RULE OF LAW
by Babette Francis,May 14, 2011
My late husband, Charles Francis, AM, QC, during the
course of his legal career acted for defendants in 48 murder trials. He
would often be asked by naïve acquaintances: “How can you defend
a man you know is guilty?” Charles would reply good-humouredly “Well,
I don’t know that he is guilty unless he confesses and pleads guilty
to murder, and, in any event, if I am available to take the case, it is
my duty to do so and present the best defence I can.” (For the record,
Charles obtained acquittals — or a reduction to manslaughter —
in 47 of these cases.)
I am reminded of Charles’s comment about the duty of a lawyer by
what has happened in the USA in response to a campaign of political intimidation
by the homosexual lobby. The Defense of Marriage Act (USA), known by the
acronym DOMA, does not outlaw homosexual marriage, but it allows states
not to recognise homosexual marriages from other states, and it defines
marriage for the purposes of federal law as “a legal union between
one man and one woman”.
The Act was passed in 1996 by overwhelming bipartisan majorities —
342 to 67 in the House of Representatives, and 85 to 14 in the Senate
— and was signed into law by President Bill Clinton. Homosexual activists
have long opposed it, and many hoped that President Barack Obama and congressional
Democrats would repeal it. That didn’t happen. However, in February
this year, Attorney-General Eric Holder announced that the President has
now decided DOMA is unconstitutional. Therefore, even though it is the
Justice Department’s responsibility to defend the laws that Congress
passes, and even though the Obama Justice Department defended DOMA in
2009 and 2010, Holder declared that the department would no longer defend
the Act against various court challenges that have been brought by homosexual
groups.
When current House Speaker John Boehner (a Republican) decided that the
House would defend DOMA in court, the House retained the major firm King
& Spalding, with lawyer Paul Clement (who had served four years as
Solicitor-General in George W. Bush’s administration) handling the
case. King & Spalding considered the likelihood that the representation
would be controversial, but still signed off on Clement’s participation.
That’s when the pressure started. King & Spalding prides itself
on its diversity programs. In recent years, it has been a national sponsor
of the homosexual-rights Lambda Legal Defense and Education Fund and boasts
that it “actively recruits LGBT (lesbian, gay, bisexual
and transgender) law students”.
When word got out that King & Spalding was defending DOMA, there was
talk of homosexual groups cutting all ties with the firm, discouraging
top students from joining the firm, and organising protests. Clement’s
representation caused tension inside King & Spalding, and last week
that tension spilled into public view. The firm publicly withdrew from
the DOMA case and Clement promptly and courageously resigned as a partner
from the firm.
King & Spalding chairman Robert Hays said the vetting of the case
was “inadequate”, but did not explain exactly why King &
Spalding took the highly unusual step of abandoning a client. King &
Spalding will forever be synonymous with caving in to the radical homosexual
agenda.
Clement was more specific in his resignation letter, saying he quit not
because he holds strong views about DOMA but because he believes that
“a representation should not be abandoned because the client’s
legal position is extremely unpopular in certain quarters”. Clement
said he will continue defending DOMA at another firm, Bancroft PLLC.
Homosexual groups quickly gave King & Spalding the seal of approval.
“Today we learned once again that it is a bad idea to defend anti-gay
bias and discrimination in court, and fewer and fewer people are willing
to do it,” said Jon Davidson, legal director of Lambda Legal.
“This could have gotten very ugly for [King & Spalding],”
homosexual activist and former Clinton administration official Richard
Socarides told the Washington Post. “This kind of thing could have
stuck to them for decades.… A firm like this competes at all the
top law schools to recruit all the top students. I’m sure they took
a look at this and said, ‘What do we need this for?’” Left-wing
blogger Markos Moulitsas was even more blunt. In a recent tweet, he said:
“Bigot lawyer resigns and will continue representing bigot Boehner.”
Amid all the threatening and name-calling, one thing was clear. In the
furtherance of its political position, the Obama Administration has abdicated
the Justice Department’s traditional responsibility to defend laws
passed by Congress, and now King & Spalding has abdicated the lawyer’s
responsibility to represent a client. And they did it over a law that
passed with huge bipartisan majorities in a Republican-dominated
House and Senate, a law that was signed by a Democratic president, and
was defended by two Democratic administrations and one Republican one.
In the end, the lawyer standing on principle had to look somewhere else
to work. “Defending unpopular positions is what lawyers do,”
Clement wrote in his resignation letter. “The adversary system of
justice depends on it, especially in cases where passions run high. Efforts
to delegitimise any representation for one side of a legal controversy
are a profound threat to the rule of law.”
Dr R. Albert Mohler, Jr, serves as president of the Southern Baptist Theological
Seminary, the flagship school of the Southern Baptist Convention and one
of the largest seminaries in the world. He has been recognised by such
influential publications as Time and Christianity Today as a leader among
American evangelicals. Time.com called him the “reigning intellectual
of the evangelical movement in the U.S”.
Commenting on DOMA in a recent opinion piece entitled “A warning
of intimidations to come”, Dr Mohler wrote: “The defence of
… DOMA got a little more complicated as the law firm that the House
of Representatives had hired to defend the law withdrew from the case.
As The New York Times stated bluntly, the firm dropped the case ‘amid
pressure from gay rights groups’.… “Paul D. Clement, was
to lead the legal effort to defend the constitutionality of DOMA.…
“As The New York Times reported, Clement said: ‘I resign [from
King & Spalding] 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. … “I recognised 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 honourable course for me but to complete it.’
“Gay rights groups hailed the law firm’s decision. Activist
groups such as the Human Rights Campaign had lobbied King & Spalding
to drop the case. “The Weekly Standard obtained copies of emails
sent by the Human Rights Campaign to supporters that read, in part: ‘Later
that day we announced the elements of our campaign to show King &
Spalding’s hypocrisy for taking on Defense of DOMA while touting
their pro-gay policies — including their 95 per cent score on HRC’s
Corporate Equality Index. … In the meantime we also contacted many
of the firm’s clients, LGBT student groups at top law schools and
used social media to inform the public about K&S’s wrongheaded
decision.’
“The success of the group’s efforts to intimidate King &
Spalding serves as a warning of things to come. This is the kind of intimidation
that will be used against any organisation or institution — or law
firm — that takes a controversial case and opposes the agenda of
the gay rights movement. Watch and be warned.
“We should also take special note of the statement by Paul Clement.
He defended his commitment to defend DOMA and the U.S. House of Representatives
by stating, ‘Defending unpopular clients is what lawyers do.’
“So, now DOMA and the House of Representatives fall under the category
of ‘unpopular clients’.… That statement underlines the
moral revolution happening in our midst and indicates what groups like
the Human Rights Campaign are certain is the direction of history. Armed
with that confidence, intimidation is now the order of their day.”
(AlbertMohler.com, April 26, 2011).
Defending DOMA against court challenges is supposed to be the Department
of Justice (DOJ)’s job. As Attorney-General Holder has declared,
the DOJ has “a longstanding practice of defending the constitutionality
of duly enacted statutes if reasonable arguments can be made in their
defence”. But with Holder in charge, that claim is fraudulent. For
a long time, the DOJ pretended to defend DOMA, but sabotaged cases by
abandoning the arguments that best supported the statute. Politics put
an end to that charade. President Obama is unpopular and needs his base
energised if he is to have a chance at re-election. He could no longer
afford to be seen by the Left as being on the wrong side of gay marriage
— even as a sham. So Holder dutifully pulled the plug on DOMA. Ever
incoherent, the Attorney-General also announced that the administration
would continue enforcing the statute it claims is clearly unconstitutional.
Paul Clement is a brilliant lawyer. Putting two and two together, homosexual-rights
groups realised they would face one of the nation’s most polished
appellate advocates, one who would effectively employ all the compelling
DOMA arguments that the Obama Justice Department had been busy burying.
Predictably, they went viral on King & Spalding, threatening a boycott
of their clients. The firm folded like a cheap tent, abandoning the representation
while muttering feverishly about how the “vetting process” had
failed. What they really meant was that the homosexual lobby said “Jump”,
and King & Spalding responded meekly, “How high?”
Babette Francis, B.Sc. (Hons), is national coordinator of Endeavour
Forum Inc.
Member Organisation, World Council for Life and Family
NGO in Special Consultative Status with ECOSOC of the UN