Timothy Kincaid

When King and Spaulding announced that they would not be defending DOMA on behalf of the House of Representatives – after partner Paul Clement had announced that they would – anti-gay activists had a field day. Words like “intolerance” and “homosexual activist bullies” screamed across headlines in articles designed to portray the gay community as a collection of thugs who forced a poor defenseless international law firm into following the insidious homosexual agenda.

Even mainstream newspapers and editorial staff immediately assumed that the homosexuals were being too pushy and self-righteously took the opportunity to remind gay people that while gay rights may be worth fighting for, they really are just a “cause”, you see, and not so important that you can’t play nicely. Pointing out to a lawfirm that DOMA hurts gay people is, well, Un-American.

The Washington Post ran an editorial titled King & Spalding and HRC do a disservice to American values in which they declared:

HRC is right to fight vigorously to overturn DOMA, which deprives gays and lesbians of many of the rights enjoyed by their heterosexual counterparts. But it sullies itself and its cause by resorting to bullying tactics.

At the San Francisco Chronicle, a writer indignantly asserted “Case closed. This is intimidation. This is intolerance.”

I do believe that HRC bungled this situation. They behaved like jerks, adopted high-pressure tactics as their first option, and presented our community in about the worst light possible. Threatening to send out letters to K&S clients and then bragging on TV when the case was dropped was about the most stupid course of action that could be imagined.

If there are any of our readers who still contribute to HRC, this might be a good opportunity to look for another organization – one that has a better ear for political tone.

That being said, it is not unreasonable to remind a company – including law firms – that engaging in anti-gay activism or acquiescing to the demands of anti-gay activists will cost them the support of gay people and our friends, family, neighbors, supporters, and all people who value equality. As equality becomes more and more the national favored opinion, companies will find that being “neutral” on matters of sexual orientation equality will be viewed like being “neutral” on racial equality or gender equality. Forward thinking CEO’s may well be receptive to reminders about future image, provided that they aren’t made to be fools in the press.

But as it turns out, neither HRC’s bragging nor anti-gay activists’ shrieking are based in reality. King & Spaulding dropped the DOMA defense because Paul Clement never had it approved in the first place. He signed the case without following procedures or giving the firm an opportunity to measure the benefits or detriments of such a course of action.

The Fulton County Daily Report decided to look into things and found an entirely different chain of events than that which the big papers just assumed had happened. (Via WSJ)

But the Daily Report spoke to two firm lawyers and a third source anonymously who said that the DOMA matter was not fully submitted to King & Spalding”s business review committee, a firm requirement, before Clement signed a contract obligating the firm. They said the committee immediately began reviewing the case the day after the firm learned of the contract—and rejected it the next day, according to the Daily Report. The sources said the firm’s partners were taken by surprise when news broke that Clement had taken the case. “Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee,” one of the sources told the Daily Report, noting that the DOMA engagement was both controversial and had a discounted rate. The King & Spalding sources, according to the Daily Report, said that there was widespread, adamant opposition to the DOMA case within the firm. “”It sticks a finger in the eye of people,” said one source, referring to the firm’s gay lawyers and staff. And, a source said, the case did not fit the firm’s business mission. “King & Spalding is a corporate law firm—not a constitutional firm.”

I believe that there could have been a way that Clement could defend DOMA and that Spaulding & King could have worked with our community to craft a statement that did not back K&S into a corner. But Clement did not consider his firm’s interests and it was his arrogance and presumptions about DOMA and public opinion that ultimately embarrassed the firm.