Just recently, certain elements of the gay-rights community reportedly succeeded in pressuring the nationally renowned law firm of King and Spaulding to withdraw from representing Republican members of the U.S. House of Representatives to defend the constitutionality of the anti-gay marriage statute, the Defense of Marriage Act.
I am a liberal Democrat and have long believed in gay rights and legalized gay marriage. To me, any legal ban on gay marriage must be unconstitutional since it lacks any rational basis and thus violates the Equal Protection Clause of the 14th Amendment. I agreed with Attorney General Eric Holder’s decision that the Justice Department should not defend the constitutionality of the act.
But I also agreed with Holder’s decision to appoint a special counsel to defend the act. This is because our system of justice — due process of law — requires attorneys to be adverse to one another, arguing the facts and the law to the best of their ability, with neutral independent judges or juries deciding the cases. That is the core of democracy — the central principle that is the essence of justice in a free society.
Paul Clement’s decision to resign from King and Spaulding after the firm yielded to pressures from some in the gay community was a courageous decision. It was praised by both Holder and Supreme Court Justice Elena Kagan. The firm’s decision to withdraw and to yield to these ugly threats and pressures was most unfortunate.
Rule 1.2(b) of the American Bar Association’s Model Rule of Ethics states: “A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Yet how many people forget this fundamental principle? How many people are quick to criticize lawyers because they defend “bad” people or causes? Sadly, too many Americans do not understand this vital role of the legal profession in upholding liberty and justice by following their ethical obligations. Jokes ridiculing lawyers who take on unpopular clients are more in vogue.
There is a long tradition of not appreciating the role of attorneys in our free society. Recall the cries of “traitor” about the future second president of the United States, John Adams, when he did his duty and defended the British soldiers who were being prosecuted for their role in the Boston Massacre.
Liberals — and most leaders of the gay-rights community can be said to be more liberal than conservative — of all people should be strong defenders of due process, the right of minorities to a fair trial and a vigorous defense. Yet their silence about the ugly campaign of gay-rights extremists against King and Spaulding has been deafening — and shameful. I can’t help thinking of the oxymoronic expression, “liberal fascism.”
Which is why I am reminded of the famous, stunning words of a leading German Protestant pastor, Martin Niemoller, in a speech he made shortly after the end of World War II. The Rev. Niemoller expressed regret about his own complicity, and that of his fellow German Protestant church leaders, by their silence as the Holocaust was occurring in their nation and in their neighborhoods. He said:
“First they came for the communists, and I didn’t speak out because I wasn’t a communist.
“Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.
“Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.
“Then they came for me, and there was no one left to speak out for me.”
Lanny Davis is the principal in the Washington D.C. law firm of Lanny J. Davis & Associates. He served as President Clinton’s Special Counsel in 1996-98 and as a member of President Bush’s Privacy and Civil Liberties Oversight Board in 2006-07. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America” (Palgrave Macmillan, 2006). He can be found on Facebook and Twitter (@LannyDavis).
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