Gay Bullies or Republican Bungling?

05/01/2011 08:14 pm ET | Updated Jul 01, 2011

It was my intention to discuss a topic other than marriage, but circumstances conspired to scuttle my plans. The hyperbole and misinformation some conservatives are spewing regarding Republican plans to defend marriage inequality is the reason. Republican House leaders recently hired a major law firm, King & Spalding, to defend the Defense of Marriage Act.

But, DOMA is so badly drafted that even its author, former congressman Bob Barr, wants repeal. He calls it a "a de facto club used to limit, if not thwart the ability of a state to choose to recognize same-sex unions" and says this violates "the principles of federalism" it was supposed to uphold. Barr says, "The law should be repealed."

King & Spalding, one of the largest law firms in the country, took the case and a few days later announced they would drop it. In the meantime, the Human Rights Campaign had done lots of posturing and a few press releases.

But HRC, in this writer's opinion, is largely ineffective. It typically comes to the party late, drags its feet, and seems to put interests of the Democratic Party ahead of the LGBT community. When King & Spalding dropped out, HRC immediately took credit for it. The Right took this dubious claim and ran with it.

A shrieking Debra Saunders blamed "the intolerant Left," describing this as an act of "intimidation" and "intolerance."

While there was no time to actually organize a boycott of the firm, Focus on the Family howled that the imagined boycott was "Bullying, Strong-arming, Veiled Threats, etc." They wrote it was "an exercise in political and financial power (bullying) by LGBT advocacy organizations and their allies." In other words, when advocates of equality talk about a boycott it is "bullying."

Yet, Focus on the Family engaged in "bullying," by their own definition:

  • They threatened a boycott of the Conservative Political Action Conference because it allowed a Republican gay group to attend.
  • Focus joined a boycott of Proctor & Gamble because it was deemed to be gay friendly.
  • According to the San Francisco Chronicle, Focus on the Family boycotted Wells Fargo, and closed their bank account there, because the bank contributed money to an LGBT organization.
  • The same article said conservatives boycotted Ford, for advertising on shows like Will & Grace, and Disney Co., for allowing a "gay days" activity at their parks, along with Walgreens.
Apparently, it is only bullying when the LGBT community isn't the target.

Conservatives attribute the King & Spalding decision entirely to the few pieces of paper HRC released. This, of course, plays well with conspiracy-minded conservatives who imagine a gay plot to destroy America, no doubt run by the Learned Elders of Sodom. But these simplistic attacks ignore the problems the law firm was having behind the scenes.

Shortly after the contract was announced, there were rumblings that employees at the firm were very unhappy. Republicans had inserted a clause in the contract that would have stripped firm employees of First Amendment rights. It stipulated that no employee may engage in "lobbying or advocacy" regarding "any legislation" that would "alter or amend in any way the Defense of Marriage Act." This contract explicitly included employees "who do NOT participate in the litigation."

This would mean that secretaries, cleaning staff and lawyers working on other cases, are forbidden from expressing opposition to DOMA. King & Spalding has a few hundred attorneys and associates in their offices around the world. They also have secretaries and other support staff who assist them. All would have lost their First Amendment protections at the bidding of the Republican House leadership. This realization was rumored to have caused consternation among employees, with some considering leaving the company as a result. The LGBT site Box Turtle Bulletin reported that the company was "facing a growing backlash among its own employees."

In addition, there are stories that Coca-Cola, a major client of the firm, had expressed displeasure that their law firm was engaged in defending blatantly discriminatory legislation.

Another complicating factor, ignored by knee-jerk conservative commentators is that King & Spalding had close ties with LGBT legal groups. They are a sponsor of the Lambda Legal Defense and Education Fund, providing it with pro bono services. The firm also had advertised it "seeks opportunities to partner with LGBT student organizations to help their members successfully navigate the process of moving from law student to lawyer."

The "gag order" was so broadly worded that existing programs and policies of the firm could be challenged by conservatives. Would King & Spalding have been required to drop its work with Lambda Legal because of it? The law firm itself said the case was dropped because "the process used for vetting this engagement was inadequate." That may not have been smoke and mirrors, as critics assumed.

To this observer, it seems the matter is more complicated than conservatives pretend. It is unlikely that a few press releases would have this immediate a response. Even the HRC said they were surprised by the announcement, though they quickly took credit for it. Far more likely, is that King & Spalding was telling the truth. This seems especially likely, if you consider that the gag measure created a backlash among firm employees, may have required cancellation of existing programs and partnerships, and complicated work with major clients such as Coca-Cola.

I suspect that the Republicans, by including such broad restrictions on all King & Spalding employees, shot themselves in the foot -- even if the HRC wants to take credit for pulling the trigger.