GOP pushes on with marriage act defense after law firm backs out

House Republicans have picked a new firm to defend the Defense of Marriage Act (DOMA) after the firm they initially hired withdrew from the case following a backlash from the gay and lesbian community.

In a flurry of announcements Monday morning, the Atlanta-based legal giant King & Spalding said it had dropped the politically charged case, prompting its lead attorney, Paul D. Clement, to resign in protest.

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Clement, a former solicitor general in the George W. Bush administration, immediately jumped to a new firm, Bancroft PLLC, and will handle the DOMA defense for them.

The dramatic turn of events highlighted the turmoil surrounding the 1996 marriage law, which has become a political headache for House Speaker John Boehner (R-Ohio). Boehner pledged to use the House’s prerogative to defend the statute after the Obama administration dropped the case earlier this year.

Minority Leader Nancy Pelosi (D-Calif.) assailed Boehner for the move, and gay-rights advocates targeted King & Spalding for its involvement.

On Monday, King & Spalding chairman, Robert D. Hays Jr., issued a statement saying the firm had withdrawn from the case.

“Last week we worked diligently through the process required for withdrawal,” Hays said. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

Boehner spokesman Brendan Buck said the Speaker “is disappointed in [King & Spalding’s] decision and its careless disregard for its responsibilities to the House in this constitutional matter.”

“At the same time, Mr. Clement has demonstrated legal integrity, and we are grateful for his decision to continue representing the House,” Buck said. “This move will ensure the constitutionality of this law is appropriately determined by the courts, rather than by the president unilaterally.”

Buck said the structure of the House contract on the case will stay the same, meaning Congress will pay as much as $500,000 in legal fees to Bancroft. Boehner wants to cut the budget of the Department of Justice by the amount the House will pay to defend the marriage case that the administration has dropped.

Clement released his letter of resignation from King & Spalding and announced he would continue the case for Bancroft, a smaller D.C.-based firm.

"My resignation is, of course, prompted by the firm's decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives Section III of the defense of Marriage Act," Clement wrote in the letter. 

Clement said King & Spalding should have stood its ground and worked on the case despite the controversy it generated. 

"To be clear, I take this step not because of strongly held views of this statute," Clement wrote in the letter. "My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General. Instead, I resign 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."

A spokesman for King & Spalding, Les Zuke, responded: “We’re sorry to see Paul Clement leave. He’s been a good partner, and we wish him the best.”

Clement was a partner in the firm before and after his seven-year stint in the solicitor general’s office during the Bush administration, including three years as the U.S. government’s chief advocate before the Supreme Court. He is a former clerk for Justice Antonin Scalia.

Bancroft was founded by Viet Dinh, a Georgetown law professor and former assistant attorney general. In a dig at King & Spalding, Clement praised Bancroft in a statement as a firm that “offers its clients premier talent, without all the baggage of a mega firm. We are shaking up the D.C. legal establishment.”

The Human Rights Campaign had announced an effort to target clients and potential recruits of King & Spalding by purchasing print ads headed with the word “Shame” and writing letters to clients and top law schools. The gay-rights group praised the firm’s decision to withdraw and pledged to keep up the fight against the new firm.

“The Defense of Marriage Act is patently unconstitutional and those who wish to argue for continued institutionalized discrimination will stand on the wrong side of history,” spokesman Michael Cole-Schwartz said.

Pelosi spokesman Drew Hammill issued a statement Monday saying the Democratic leader shares King & Spalding’s "apparent concerns with the lack of transparency and accountability in the way this contract was signed."

“She also vigorously opposes using half a million taxpayer dollars or any taxpayer resources to defend discrimination, at a time when Republicans in Congress are cutting critical initiatives like education and infrastructure,” Hammill said. “It is now more critical than ever that Speaker Boehner fully account for his decision to sign this half million dollar contract to defend this indefensible statue."

House Administration Committee Chairman Dan Lungren (R-Calif.), who signed off on the $500,000 contract with King and Spalding, said the firm's withdrawal was "inexcusable." 

“King and Spalding’s cut and run approach is inexcusable and an insult to the legal profession. Less than one week after the contract was approved engaging the firm, they buckled under political pressure and bailed with little regard for their ethical and legal obligations. Fortunately, Clement does not share the same principles. I’m confident that with him at the helm, we will fight to ensure the courts — not the President — determine DOMA’s constitutionality.”

Read Clement's resgination letter below.


—Last updated at 1:05 p.m.

Paul Clement Resignation Letter-1