Ari Ezra Waldman | DOMA | Law - Gay, LGBT | Paul Clement

The Curious Case of Paul Clement

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Clement After President Barack Obama decided that his administration will no longer defend the Defense of Marriage Act (DOMA), the Republican-controlled House of Representatives chose Paul Clement, a former solicitor general in the administration of President George W. Bush, to step in. At the time, Mr. Clement was a partner at the large firm King & Spalding LLP, billing at more than $500 per hour and eager to take on the defense. When he retained Mr. Clement, Speaker John Boehner insisted on a "gag rule" that would have barred all K&S attorneys and staff from being involved in anything or saying anything that could be seen as opposing DOMA. But, almost as suddenly as Mr. Clement took the reins did King & Spalding reverse course, declining to take the case and forcing Mr. Clement to flee to the conservative Bancroft firm to continue his representation of the House.

This was a pretty remarkable story, with at least three lessons. This drama is not really about wanting the best defense for DOMA -- it should, and will, get a vigorous defense despite this saga; rather, it is about (1) the role of public money in squelching speech and (2) the responsibilities of large law firms. Most importantly, this hiccup in the House's defense of DOMA illustrates the progress we have made in the court of public opinion and the reason why persuading hearts and minds is the real battle.

Some thoughts on how House Republicans overplayed their hands and created free speech concerns, the (admittedly belated) ordinariness of K&S's ultimate decision and the importance of public opinion AFTER THE JUMP...

Given that House Republicans have found the need to defend DOMA, many believe it should get the best defense possible. House Republicans should bring their A-game, lest our victory seem illegitimate, like Mike Tyson going after Carol Channing (though, as seen here, Seth MacFarlane thinks that analogy is inapt). This is an uninteresting conclusion.

More important is the proposed "gag rule." The agreement signed by Mr. Clement would have silenced everyone at K&S, preventing anyone from voicing any opposition to DOMA, stating that “partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”

Not only is that ridiculous -- it would be like a firm that represents a tobacco company barring its employees from telling people not to smoke -- and of dubious First Amendment merit -- admittedly, I know of no free speech case on point in which public money was paid to a private firm to perform a consulting service for the government and included a comprehensive evisceration of employee speech, but related case law on private employee speech rights suggest that such a rule would violate employee First Amendment rights -- it is incompatible with how law firms work. The wide reach of large law firms and the diverse clientele that comes with such size mean that one firm, even one office, may represent clients whose interests do not always align on a particular case. In those instances, firms set up "walls" to fulfill their ethical obligations and avoid even the hint of a conflict of interest. There is no reason why representation of the Republican House in defense of DOMA would require more than that, allowing the firm to defend DOMA and, for example, represent amici who support marriage equality in the Prop 8 case. Instead, Mr. Clement and House Republicans applied a free-speech-as-long-as-you-agree-with-us mentality.

That said, there is nothing extraordinary about K&S's ultimate decision to drop the DOMA defense. While firms do set up walls within offices, it is only natural that certain types of clients gravitate toward certain firms, while their perennial foes gravitate toward others. There are plaintiffs' firms, union-side labor lawyers and lawyers that exclusively represent record labels just like there are defense firms, management-side labor lawyers and lawyers that represent musicians or music consumers. Therefore, it is only natural for a firm like K&S to decide that a given client does not fit within the firm's broader ethos. K&S, like many of its fellow top-tier firms and its clients have made a very public commitment to diversity. And, as my distinguished colleague (and Towleroad reader) Professor Chuck Knapp at UC Hastings School of Law noted to me, firms like K&S can make the legitimate decision that defending DOMA is simply incompatible with the firm's and its clients' goal of fostering tolerance and acceptance in the workplace.

The gag rule would also have been illegal in at least some of the states where K&S has set up shop. New York, for example, has a law that states...

Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: ... an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal …

Similar rules in California and other states may have made the gag rule a non-starter.

Kingspalding This shows the importance of diversity initiatives and diversity commitments in the private sector. Many poo-poo diversity manifestos as little more than a piece of paper new hires receive on their first day and either file away under "Never Read" or toss in the trash. But, to many companies competing for the best minds, minority protections and diversity are essential to getting their recruiters on campus and persuading the best students to join their ranks. If this diversity goal was not part of the ethos of K&S and its clients, CocaCola would never have pressured K&S to drop the case and the Human Rights Campaign would have had no leg to stand on when it pressured K&S and its clients.

But it seems unlikely that this commitment to diversity would have trumped broad public opinion. If it were 1996, when marriage equality was supported by less than 25% of the public according to some polls, Coca-Cola may not have been as willing to run out on a limb and ask K&S to reconsider its defense of DOMA. (It certainly would have made the company less vocal and public about its behind the scenes maneuvers.) The erstwhile Mr. Clement's termination of his relationship with K&S was, at least in part, made possible by the change in public opinion in favor of marriage equality. For years, we have been working to show our straight friends that their gay neighbors are just like them and the growing majorities that support marriage equality are proof that the strategy is working.

Public opinion, together with the private sector's commitment to diversity as a means to attract the best and brightest, made this story. House Republicans and Mr. Clement made a mistake: they overplayed a losing hand. And, by defending an indefensible law, they will just keep losing.

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Comments

  1. i always enjoy your posts, ezra. thanks for this one.

    i always thought it was the executive branch's responsibility to defend the law of the land. are there other instances where congress has done this?

    Posted by: deedrdo | Apr 28, 2011 6:46:40 PM


  2. Wonderful analysis, as always Ezra.

    Posted by: jjasonham | Apr 28, 2011 6:47:30 PM


  3. @deedrdo: thanks for your comment. you are generally right, but there have been a few rare instances where the executive has found no reasonable argument to defend a law. chief justice roberts, who was then a lawyer in the Reagan administration, advocated that view. It has happened before, recently, even. The most famous is U.S. v. Lovett, in 1946 (an appointments and federal salary case). More recently, after President G H W Bush vetoed the must-carry provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Administration declined to defend the constitutionality of the must-carry provisions. President Clinton reversed that and did defend the law, if I remember correctly.

    Posted by: Ari Ezra Waldman | Apr 28, 2011 6:53:44 PM


  4. I have little doubt that DOMA will go. Probably a lot sooner than most of us imagine. But the screams of the homophobes will never end.

    Posted by: David Ehrenstein | Apr 28, 2011 7:13:24 PM


  5. Well thought out and said. Thank you.

    Posted by: Kyle Sullivan | Apr 28, 2011 7:27:31 PM


  6. It is interesting that it seems to be the gag order that caused the ultimate breaking...

    I'm sure there were A LOT of attys that did not relish the thought of defending legislation that affected themselves & loved ones, directly w/ codified discrimination.

    It really does seem the clock is ticking on this gov't sanctioned discrimination; can't come quickly enough.

    Posted by: Pete n SFO | Apr 28, 2011 7:31:10 PM


  7. I enjoyed your analysis and agree with it. In reading other gay media opinions on the matter either they ran too activist or too conservative-Chicken-Little (such as Andrew Sullivan who completely missed the point that the House retained the legal counsel of its choosing, just not the law firm).

    Posted by: Miche Rutledge | Apr 28, 2011 7:48:23 PM


  8. A wonderfully written piece, thank you so much for sharing your time, and wisdom with us Mr. Waldman. I'm going to be looking forward to your future articles.

    Posted by: Beau | Apr 28, 2011 8:04:52 PM


  9. Thank you again Mr. Waldman for cutting through the B.S. on the internets to provide a clear and concise summary and analysis of this event. You are a treasure.

    Posted by: Ian | Apr 28, 2011 9:07:22 PM


  10. The question remains, Mr. Waldman. Are there times when the House has defended a law when the President would not? This seems like an over reach by Boehner, and maybe a conflict of interest, using tax payer dollars to influence the judicial process. Isn't it the House's job to pass the laws, not rule on their constitutionality.

    Posted by: Wilberforce | Apr 28, 2011 9:45:04 PM


  11. Thank you,thank you thank you for inserting some sanity into this discussion. The WaPo and NYT published editorials attacking K&S for its correct decision, and you have pointed out why those esteemed publications have missed the mark entirely.

    Posted by: DLB in ATL | Apr 28, 2011 10:10:12 PM


  12. You'd think we could find out WHO inserted the gag clause and WHY, but "our representatives" appear unwilling to tell us.

    Posted by: BobN | Apr 28, 2011 10:29:06 PM


  13. Thanks. I've thought that the primary reason for this change of heart by K&S was internal pressure, not threatened protests by HRC. I was trying to understand the legal standing of having a provision in the contract denying employees the right to free speech.

    What I particularly didn't understand is how they would enforce this no talk rule. I mean, if they fired someone for violating this there would probably be a lawsuit. Would a jury not find for the fired employee? I would assume this would be litigated in Washington DC (that is where Clement worked). I cannot imagine that K&S would want the legal exposure.

    Posted by: Charlie | Apr 28, 2011 10:36:26 PM


  14. @charlie: thanks for your comment and indeed, all good questions. It
    would be impossible to police bc it could have encompassed membership
    in anything from the american bar associations lgbt cmte to being a
    member of stonewall democrats. But even if it were applied like that,
    the speech and association rights implications would be devastating to
    any attempt to fire. Not to mention the state law claims. Thats
    precisely why I thought this was classic overreach by mr clement and
    speaker boehner, neither of whom thought through the implications of
    the gag rule.

    Posted by: Ari Ezra Waldman | Apr 28, 2011 10:48:21 PM


  15. Ezra, Thank you once again for your post which help us non-lawyers understand the legal issues. The fact of the gag order in the employment contract does not surprise me. The Republicans operate in a political universe which is detached from reality.

    Posted by: AUSTIN | Apr 28, 2011 11:48:21 PM


  16. Very nice analysis. Good to have some clarity on this, which has gotten fuzzed up really good on the Intertubes. I suspect HRC was, if anything, a minor consideration, and the real pressure came from Coke and other clients, and the firm's own partners and employees.

    Posted by: Hunter | Apr 29, 2011 5:43:58 AM


  17. I have one question. Does anyone know why K&S took the case in the first place? It seems like much of this controversy is coming from the fact that they backed out (no matter how correctly) of defending this case. They have many good and logical reasons for refusing the case, but these reasons seem merely like a cover story brought in after the fact if they knew all the facts (including the gag order) up front. Did they change their mind because congress started changing the game and went too far? Or did they merely change their mind because of the pressure of the LGBT community? If we are so important they never should have taken the case in the first place.

    Can someone enlighten me?

    Posted by: MT | Apr 29, 2011 9:11:21 AM


  18. I actually do think that there's something extraordinary about K&S's decision to drop this case.

    It's very unusual for a firm to take a case and then drop it a week later because of public pressure and pressure from other clients. Normally, a firm will consider all of that before taking a case in the first place, and obtain waivers from any other client that might have a conflict. This is especially the case (or should be) when a firm knows that it is taking a case that will be high profile and receive significant media attention. They have a responsibility to their client not to damage their case by the mere fact that they decide to take it on (and subsequently drop it).

    Don't get me wrong... I'm glad that K&S made this decision. But I do think that the way that it happened is extraordinary (in the sense that it's very unusual). And I also think that Clement and House Repulicans are justifiably angry at K&S about how this went down. It's an embarassment to them that should have been avoided by a more fulsome vetting process at K&S before they ever agreed to take the case.

    Again, don't get me wrong, I'm actually happy about the embarassment to DOMA supporters and the focus that this puts on the general view of responsible companies and decent people about defending DOMA. But that doesn't mean that Clement and House Repubs aren't totally justified in their frustration with K&S.

    Bottom line: I'm happy about how this has turned out so far, but K&S really messed up, from both a PR and a professionalism perspective.

    Posted by: darbnyc | Apr 29, 2011 11:09:26 AM


  19. Here's my question to Mr. Waldman:

    Do you prefer Ari or Ezra?

    I mean, if we're going to be friends . . .

    @Hunter: completely agree with your assessment. The president of the Stonewall Bar Association of Georgia is an associate at K&S in Atlanta. I'm guessing he spoke up within the firm. Their public statements were issued by the vice president, who's with another firm.

    Posted by: jpeckjr | Apr 29, 2011 11:10:04 AM


  20. Thanks for asking. My first name is Ari, middle name Ezra. :) I go by Ari.

    Posted by: Ari Ezra Waldman | Apr 29, 2011 11:42:48 AM


  21. @MT Does anyone know why K&S took the case in the first place?

    I know. K&S didn't actually take the case. Paul Clement did because Boehner asked him to. There's a saying in Washington "If the president asks you don't say no." When you are called to give service to your country you answer the call. Boehner is in a much more political position but it works somewhat the same way. When you party leadership asks you to do something you answer the call. Clement has been asked to lend his talents and prestige to this legal fight. And he has answered the call. Not to have done so would destroy his credibility with the party leadership and he wouldn't be offered any future government positions when the Republicans return to the White House. (And they will, at some time.)

    K&S would be expected to go along with Clement's desire to take the case. Clement was considered a prize when he signed with them. They would have understood that he would take this kind of role and it wouldn't really be much of an issue. Every one in the company would have understood. Even LGBT staff would have understood. They might not like it but they knew that every position deserves to be represented and they would have gone along with the decision.It's the gag order, which AEW described as Republican overreaching, that is causing the disruption at the firm. It's one thing to allow representation for a position you might not agree with, it's quite another to stifle disagreement. When K&S cancelled this contract they had to know they were losing their prize attorney (and his name on their letterhead).

    So, I have two additional questions that AEW and others can speculate on.

    1. Did Clement withhold from K&S management the existence of this gag order clause? The said when withdrawing from this contract that it hadn't been given proper vetting. If they had been told about the clause this would have sent up red flags. While they could have been expected to go along with Clement providing this legal representation they might have insisted that this be kept out of the deal. And Clement could have also blocked this. He could have told Boehner that he would take the case but that they could not include the gag order. In fact, it might be that Clement is the one that suggested the clause. That is all very Machiavellian but I wonder if it is still the case.

    2. How much will this affect Clement's earnings? The all the perks and bonuses I wouldn't be surprised if Clement was making over $1 million a year at King and Spaulding. And it is doubtful that Bancroft PLLC with its 6 other attorneys and 2 other associates could match that. So far K&S has been the only loser n this affair. Boehner gets his prestige lawyer on the case, the anti-gay right gets to portray gay rights advocates as bullies, and HRC gets to claim a victory. But will Paul Clement also suffer?

    I want to close by saying Andrew Sullivan's comparison of critics of K&S with those who wanted to block legal representation of the prisoners at Guantanomo Bay is total bovine excrement. No one has said that the right to have attorney's in court should be blocked. The conservatives wanted to take away all rights to legal due process and representation from the Guantanamo Bay prisoners. They want a "fair trial" where the outcome has already been determined.

    Posted by: Charlie | Apr 29, 2011 1:43:52 PM


  22. I'm not generally prone to conspiracy theories, but I think this whole fiasco was orchestrated to get the case to Paul Clement and have him move to a small, conservative firm.

    The gag clause was a poison pill. Anyone, ANYONE, with even a little knowledge of the law would have realized the clause was unnecessary and illegal in some jurisdictions. As much as I detest the GOP leadership, I know they aren't stupid.

    Someday, we'll learn what went on behind the scenes. I think right now, everyone is keeping mum just so as not to embarrass (or expose) themselves.

    Posted by: BobN | Apr 29, 2011 2:13:26 PM


  23. "the role of public money in squelching speech"

    This is why we love you, Ari.

    But why do you say "dubious First Amendment merit"?

    If the House of Representatives itself is stipulating the gag rule, isn't it a clear-cut violation of the First Amendment admonition that "Congress shall make no law...abridging the freedom of speech"?

    Posted by: JeffNYC | Apr 29, 2011 2:32:30 PM


  24. @JeffNYC: thanks. :) i say dubious only because while its hard for me to imagine how it would be ok under the FA, i havent thought it about long enough to make a definitive statement in that regard.

    Posted by: Ari Ezra Waldman | Apr 29, 2011 2:48:38 PM


  25. Of course, possibly the firm decided that it would not want to go down in history like the lawyers who succeeded in returning Dred Scott and his family to slavery, or supporting Virginia in Loving v. Virginia, Ferguson in Plessy v. Ferguson, and Board of Education in Brown v. Board of Education.

    And I am FAR from convinced that "every position deserves to be represented." There is a difference between a defendant and a position. The defendants at Nurnberg deserved to be represented effectively; the Nurnberg laws which empowered them to commit atrocities and crimes against humanity did NOT.

    Posted by: EdA | Apr 30, 2011 12:14:49 AM


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