Wednesday, April 27, 2011

DOMA does Not Have a "Right" to Legal Counsel

From Equality Matters:
1. DOMA does not have a “right” to legal counsel. The Defense of Marriage Act is not a criminal defendant. While it is true that even criminals who have committed heinous and “unpopular” crimes are entitled to the services of an attorney, laws do not have the same luxury, and for good reason. Laws cannot be put to death or sentenced to life in prison, nor can they have their lives and reputations ruined by an improperly conducted trial.

AMERICAblog’s John Aravosis reiterated the point while responding to the Washington Post’s defense of Clement:
What the Post is doing is assuming that these are criminal trials. And in criminal trials you are presumed innocent until proven guilty. That's why you get a lawyer, no matter what, to defend you. It's your constitutional right to have a lawyer. DOMA is not facing a criminal trial, and DOMA therefore does not have a constitutional right to a lawyer.
2. House of Representatives can defend DOMA even if no private firm agrees to participate in the case. The House Office of the Legislative Counsel retains approximately 40 attorneys that can be used to mount DOMA’s legal defense in court. Speaker Boehner could have chosen to use these attorneys instead of spending hundreds of thousands (at least) of taxpayer dollars seeking outside private counsel. No law has a “right” to a $5 million attorney at a major law firm with countless support staffers.

3. King & Spalding didn’t base its decision not to defend DOMA simply on public pressure. According to a statement released by the firm, the decision to withdraw was based on the determination that the vetting process for the firm’s engagement had been “inadequate.”

In fact, King & Spalding filed a formal motion to withdraw, claiming that there was “good cause” for the withdrawal, meaning, in the words of Metro Weekly, there “is a legally adequate or other substantial grounds” for the firm not to continue taking the case.

The firm’s contract with the House’s Bipartisan Legal Advisory Group had already come under intense scrutiny, especially a potentially illegal provision which barred all of King & Spalding’s employees (including non-lawyers) from advocating for DOMA’s repeal. As Chris Geidner of Metro Weekly reported:
What's more, Jon Davidson, the legal director at Lambda Legal, told Metro Weekly that in some states the provision might be illegal. Davidson specifically pointed to California, where King & Spalding has two offices, in which Labor Code Section 1101 states that "[n]o employer shall make, adopt, or enforce any rule, regulation, or policy ... [f]orbidding or preventing employees from engaging or participating in politics ...."

Talking about the statute, which would be applicable in King & Spalding's San Francisco and Silicon Valley offices, Davidson said, "It's not just illegal, it's criminal. It also gives rise to civil liability.”
4. King & Spalding is legally entitled to choose not to defend laws or clients the firm doesn’t approve of. No private for-profit firm is required to represent clients they don’t agree with. King & Spalding is a firm that prides itself on its support for its LGBT employees and understandably likely sees its image as being closely tied to its support for LGBT equality. It’s ridiculous to expect a private law firm to advocate on behalf of a discriminatory and unconstitutional law when that very law contradicts its own institutional values.

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