Michelle Mumford looks at the Defense of Marriage Act (“DOMA”) and its Defense in the context of the Honorable Monroe G. McKay, Senior Judge on the United States Tenth Circuit Court of Appeals, address to a group of young lawyers at the Utah State Bar’s annual Law Day luncheon on the theme of “The Legacy of John Adams, from Boston to Guantanamo”. Judge McKay recited a number of instances throughout history where lawyers have taken on noble yet unpopular causes. He reminded lawyers that there will always be opportunities to do the right thing. I found Judge McKay’s remarks especially poignant in light of the recent failure of the Atlanta law firm of King & Spalding to honor its commitment to defend the Defense of Marriage Act (DOMA).
From Boston to Guantanamo to DOMA
John Adams built an honorable reputation over time as a fair and zealous advocate. He cemented his reputation when he agreed to represent the British soldiers on trial for the Boston Massacre. The basic facts were as follows: On the evening of March 5, 1770, a crowd of protesters gathered near the Customs House on King Street in Boston to confront British soldiers. The situation escalated. The soldiers, who were under the command of Captain Thomas Preston, fired on the crowd. Five colonists died. Captain Preston and eight of his men were arrested and indicted for murder.
Author David McCullough wrote extensively on this episode in his biography of John Adams. He records that Adams worried that he would be “incurring a clamor and popular suspicions and prejudices” against him. (McCullough, 66) “[I]t was rumored that he had been bribed to take the case. In reality, a retainer of eighteen guineas was the only payment he would receive.” (Ibid.)
Adams’s defense was that the soldiers were acting in self-defense in the face of an unruly mob. In closing arguments, Adams first coined the famous phrase: “Facts are stubborn things. And whatever may be our wishes, our inclinations or the dictates of our passion, they cannot alter the state of facts and evidence.” (McCullough, 68.) The jury acquitted the British Captain and six of his soldiers; two were convicted of lesser charges and, instead of the death penalty, punished by branding of the thumb.
Adams recorded in his diary: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”
Adams’ representation of the British soldiers was not without consequence. McCullough observes: “There were angry reactions to the decision. Adams was taken to task in the Gazette and claimed later to have suffered the loss of more than half his practice. But there were no riots, and Samuel Adams appears never to have objected to the part he played.” (McCullough, 68.)
Judge McKay pointed out how American history reflects other instances of courageous lawyers taking on what were then unpopular causes.
In the mid-1800s, lawyer Thomas Kane represented the then-despised Mormons, who had been subject to the Missouri Governor’s Extermination Order and forced to migrate west. In the context of rising political tensions that would lead to the Civil War, President Buchanan ordered the U.S. Army to march on the Utah Territory to subdue what he referred to as the Mormon rebellion. President Buchanan had taken a hard line stance against the Mormons in his State of the Union address, and referenced the matter as part of his request for additional federal troops. Mr. Kane, a non-Mormon, came west to mediate the President’s claims – he defended the Mormons and helped resolve the dispute by persuading the Mormons to accept a non-Mormon territorial governor, President Buchanan to pardon any offenses by the Mormons in the conflict, and the Army to base its camp over 50 miles away from Salt Lake City.
Justice Robert Jackson’s dissent in Korematsu v. United States gives us another example of noble lawyering in the face of popular prejudice. Korematsu dealt with the constitutionality of President Roosevelt’s Executive Order 9066 authorizing military leaders to confine Japanese Americans to internment camps following the attack on Pearl Harbor. In 1944, the Supreme Court upheld the constitutionality of the Order and the conviction of a Japanese-American for evading internment. In his dissent, Justice Jackson acknowledged the perceived need for deference to the military but spoke out against the Order’s racism: “But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.”
In similar circumstances a few years later, Judge McKay pointed out that a lawyer named Joseph Welch stood up to Senator Joe McCarthy’s accusations that Welch’s partner, a lawyer who had belonged to the National Lawyers Guild in law school, was therefore a communist sympathizer: “Have you no sense of decency, sir, at long last? Have you no sense of decency?”
I would extend Judge McKay’s remarks to some of the hot-button issues of the day. Regardless of how we feel about issues such as the rights of enemy combatants, the war on terror, or even legislation like DOMA, we must acknowledge the need for lawyers who represent their clients zealously within the law, regardless of the perceived popularity of the cause. Judge McKay pointed to the noble defense provided by lawyers to the prisoners at Guantanamo Bay. Some of these lawyers have been labeled terrorist sympathizers.
I believe we should also acknowledge the nobility of those lawyers who advised President George W. Bush in similarly trying circumstances on the other side of the issue. These lawyers, such as John Yoo, who liberal groups have labeled an “enemy,” were asked to advise the President. They took on the engagement with the same zeal as the lawyers representing the Guantanamo prisoners – there is no cause to impugn their integrity or loyalty simply because you might disagree with their legal conclusions.
Finally, the subject of Judge McKay’s address is most timely with regards to King & Spalding’s representation of the United States House of Representatives in defending the constitutionality of DOMA in litigation that is likely to end up in the Supreme Court. DOMA defines marriage as between a man and a woman and holds that states may not be compelled to recognize same-sex marriages performed in other states. The act was passed in 1996 with overwhelming majorities in the Senate (85-14) and House (342-67) and was signed into law by President Clinton. Though President Obama supported the policy when he ran for President in 2008, and his Justice Department was obligated to defend it, the issue has become contentious in recent years. Last fall, after providing what was admittedly a half-hearted defense of the law, the Obama administration changed course and flat out refused to defend it. In response, Speaker of the House John Boehner deemed it necessary to retain private counsel to defend the law. King & Spalding agreed to take the case, and former Solicitor General Paul Clement, a partner at King & Spalding, was to be the lawyer principally responsible. It appears the firm entered into the engagement with perhaps some of the same noble intentions that John Adams exhibited in 1770.
But less than one week later, after receiving threats from liberal interest groups who influenced major clients such as Coca-Cola, and others, King & Spalding weakly withdrew from the DOMA case, citing an insufficient vetting process. Clients beware – King & Spalding has shown itself to be the anti-Adams: it is not a place where “facts are stubborn.” Its lawyers are subject to the winds and waves of perceived public opinion, and once engaged you just never know how committed they will turn out to be. In a world of many lawyers, but not enough good ones, the firm has shown itself to be … expendable.
In response, Paul Clement left the firm to continue his representation of DOMA. Perhaps acknowledging the legacy of Adams, even President Obama and Attorney General Eric Holder have defended his decision in light of King & Spalding’s act. May we Americans ever acknowledge the principles of our founding fathers.
Judge McKay concluded his remarks observing that courageous lawyering involves courageous living. We won’t all face drastic unpopular cause situations that demand the courage of John Adams, Paul Clement and others. But there will always be opportunity to stand for the craft of lawyering, even for the unpopular client of the moment. As Judge McKay admonished: the winds of popularity shift, and today’s majority could just as easily be tomorrow’s hated minority.
So, be generous with your praise of a lawyer’s zealous representation. And be generous with your time and skills, if ever the situation arises where you need to stand up and defend those in need of a vigorous defense.
Michelle Mumford is a conservative political activist, an attorney, and mother of four. You can find her on Twitter at @MichelleMumford and on her blog at Utah Vanguard.
- Gentlemen May Cry: An Essay on Anti-Federalism, Part 2 (americanclarion.com)
- US sends home two Guantanamo detainees (skynews.com.au)