May 14th 2011

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Articles from this issue:

EDITORIAL: The death of Islamic terrorism?

CANBERRA OBSERVED: Can Julia Gillard deliver on her three core commitments?

NATIONAL AFFAIRS: Growing anger at supermarket price war

NEW SOUTH WALES: NSW Liberals set new course

CHILDCARE: Exposing the lies in the childcare funding debate

RESEARCH PROJECT: Australia's food security under threat

CARBON TAX: Remorseless killers of our industries and jobs

MILITARY: Dispatching women into frontline combat

MARINE SCIENCE: Bluefin tuna: an endangered species?

FOREIGN AFFAIRS: Prime Minister Gillard kowtows to China

CHINA: China's economy at risk of debt crisis

UNITED STATES: PC intimidation threatens the rule of law

HISTORY: The long debate on how to alleviate poverty

IMMIGRATION: The vexed question of illegal immigration

OPINION: An inglorious tale of guile, envy and deceit

BOOK REVIEW: The deceivers and the deceived

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PC intimidation threatens the rule of law

by Babette Francis

News Weekly, May 14, 2011

My late husband, Charles Francis, AM, QC, during the course of his legal career acted for defendants in 48 murder trials.

He would often be asked by naïve acquaintances: “How can you defend a man you know is guilty?” Charles would reply good-humouredly “Well, I don’t know that he is guilty unless he confesses and pleads guilty to murder, and, in any event, if I am available to take the case, it is my duty to do so and present the best defence I can.” (For the record, Charles obtained acquittals — or a reduction to manslaughter — in 47 of these cases.)

I am reminded of Charles’s comment about the duty of a lawyer by what has happened in the USA in response to a campaign of political intimidation by the homosexual lobby.

The Defense of Marriage Act (USA), known by the acronym DOMA, does not outlaw homosexual marriage, but it allows states not to recognise homosexual marriages from other states, and it defines marriage for the purposes of federal law as “a legal union between one man and one woman”.

The Act was passed in 1996 by overwhelming bipartisan majorities — 342 to 67 in the House of Representatives, and 85 to 14 in the Senate — and was signed into law by President Bill Clinton. Homosexual activists have long opposed it, and many hoped that President Barack Obama and congressional Democrats would repeal it. That didn’t happen.

However, in February this year, Attorney-General Eric Holder announced that the President has now decided DOMA is unconstitutional. Therefore, even though it is the Justice Department’s responsibility to defend the laws that Congress passes, and even though the Obama Justice Department defended DOMA in 2009 and 2010, Holder declared that the department would no longer defend the Act against various court challenges that have been brought by homosexual groups.

When current House Speaker John Boehner (a Republican) decided that the House would defend DOMA in court, the House retained the major firm King & Spalding, with lawyer Paul Clement (who had served four years as Solicitor-General in George W. Bush’s administration) handling the case. King & Spalding considered the likelihood that the representation would be controversial, but still signed off on Clement’s participation.

That’s when the pressure started. King & Spalding prides itself on its diversity programs. In recent years, it has been a national sponsor of the homosexual-rights Lambda Legal Defense and Education Fund and boasts that it “actively recruits LGBT (lesbian, gay, bisexual and transgender) law students”.

When word got out that King & Spalding was defending DOMA, there was talk of homosexual groups cutting all ties with the firm, discouraging top students from joining the firm, and organising protests.

Clement’s representation caused tension inside King & Spalding, and last week that tension spilled into public view. The firm publicly withdrew from the DOMA case and Clement promptly and courageously resigned as a partner from the firm.

King & Spalding chairman Robert Hays said the vetting of the case was “inadequate”, but did not explain exactly why King & Spalding took the highly unusual step of abandoning a client. King & Spalding will forever be synonymous with caving in to the radical homosexual agenda.

Clement was more specific in his resignation letter, saying he quit not because he holds strong views about DOMA but because he believes that “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters”. Clement said he will continue defending DOMA at another firm, Bancroft PLLC.

Homosexual groups quickly gave King & Spalding the seal of approval. “Today we learned once again that it is a bad idea to defend anti-gay bias and discrimination in court, and fewer and fewer people are willing to do it,” said Jon Davidson, legal director of Lambda Legal.

“This could have gotten very ugly for [King & Spalding],” homosexual activist and former Clinton administration official Richard Socarides told the Washington Post. “This kind of thing could have stuck to them for decades.… A firm like this competes at all the top law schools to recruit all the top students. I’m sure they took a look at this and said, ‘What do we need this for?’”

Left-wing blogger Markos Moulitsas was even more blunt. In a recent tweet, he said: “Bigot lawyer resigns and will continue representing bigot Boehner.”

Amid all the threatening and name-calling, one thing was clear. In the furtherance of its political position, the Obama Administration has abdicated the Justice Department’s traditional responsibility to defend laws passed by Congress, and now King & Spalding has abdicated the lawyer’s responsibility to represent a client. And they did it over a law that passed with huge bipartisan majorities in a Republican-dominated House and Senate, a law that was signed by a Democratic president, and was defended by two Democratic administrations and one Republican one.

In the end, the lawyer standing on principle had to look somewhere else to work. “Defending unpopular positions is what lawyers do,” Clement wrote in his resignation letter. “The adversary system of justice depends on it, especially in cases where passions run high. Efforts to delegitimise any representation for one side of a legal controversy are a profound threat to the rule of law.”

Dr R. Albert Mohler, Jr, serves as president of the Southern Baptist Theological Seminary, the flagship school of the Southern Baptist Convention and one of the largest seminaries in the world. He has been recognised by such influential publications as Time and Christianity Today as a leader among American evangelicals. called him the “reigning intellectual of the evangelical movement in the U.S”.

Commenting on DOMA in a recent opinion piece entitled “A warning of intimidations to come”, Dr Mohler wrote: “The defence of … DOMA got a little more complicated as the law firm that the House of Representatives had hired to defend the law withdrew from the case. As The New York Times stated bluntly, the firm dropped the case ‘amid pressure from gay rights groups’.…

“Paul D. Clement, was to lead the legal effort to defend the constitutionality of DOMA.…

“As The New York Times reported, Clement said: ‘I resign [from King & Spalding] 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. …

“I recognised from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honourable course for me but to complete it.’

“Gay rights groups hailed the law firm’s decision. Activist groups such as the Human Rights Campaign had lobbied King & Spalding to drop the case.

The Weekly Standard obtained copies of emails sent by the Human Rights Campaign to supporters that read, in part: ‘Later that day we announced the elements of our campaign to show King & Spalding’s hypocrisy for taking on Defense of DOMA while touting their pro-gay policies — including their 95 per cent score on HRC’s Corporate Equality Index. … In the meantime we also contacted many of the firm’s clients, LGBT student groups at top law schools and used social media to inform the public about K&S’s wrongheaded decision.’

“The success of the group’s efforts to intimidate King & Spalding serves as a warning of things to come. This is the kind of intimidation that will be used against any organisation or institution — or law firm — that takes a controversial case and opposes the agenda of the gay rights movement. Watch and be warned.

“We should also take special note of the statement by Paul Clement. He defended his commitment to defend DOMA and the U.S. House of Representatives by stating, ‘Defending unpopular clients is what lawyers do.’

“So, now DOMA and the House of Representatives fall under the category of ‘unpopular clients’.… That statement underlines the moral revolution happening in our midst and indicates what groups like the Human Rights Campaign are certain is the direction of history. Armed with that confidence, intimidation is now the order of their day.” (, April 26, 2011).

Defending DOMA against court challenges is supposed to be the Department of Justice (DOJ)’s job. As Attorney-General Holder has declared, the DOJ has “a longstanding practice of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defence”. But with Holder in charge, that claim is fraudulent.

For a long time, the DOJ pretended to defend DOMA, but sabotaged cases by abandoning the arguments that best supported the statute. Politics put an end to that charade.

President Obama is unpopular and needs his base energised if he is to have a chance at re-election. He could no longer afford to be seen by the Left as being on the wrong side of gay marriage — even as a sham. So Holder dutifully pulled the plug on DOMA. Ever incoherent, the Attorney-General also announced that the administration would continue enforcing the statute it claims is clearly unconstitutional.

Paul Clement is a brilliant lawyer. Putting two and two together, homosexual-rights groups realised they would face one of the nation’s most polished appellate advocates, one who would effectively employ all the compelling DOMA arguments that the Obama Justice Department had been busy burying.

Predictably, they went viral on King & Spalding, threatening a boycott of their clients. The firm folded like a cheap tent, abandoning the representation while muttering feverishly about how the “vetting process” had failed. What they really meant was that the homosexual lobby said “Jump”, and King & Spalding responded meekly, “How high?”

Babette Francis, B.Sc. (Hons), is national coordinator of Endeavour Forum Inc.

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