Gay Marriage Fight Scares off Lawyers ; Top Firms Refuse to Argue against Same-Sex Unions in Supreme Court Cases

By Liptak, Adam | International New York Times, April 13, 2015 | Go to article overview

Gay Marriage Fight Scares off Lawyers ; Top Firms Refuse to Argue against Same-Sex Unions in Supreme Court Cases


Liptak, Adam, International New York Times


The main lawyer arguing against gay marriage in the Supreme Court is from a medium-size firm, which has decided not to stand behind him.

The stacks of Supreme Court briefs filed on both sides of the same-sex marriage cases to be heard this month are roughly the same height. But they are nonetheless lopsided: There are no major law firms urging the justices to rule against gay marriage.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

"Firms are trying to recruit the best talent from the best law schools," said Dale Carpenter, a law professor at the University of Minnesota, "and the overwhelming majority of them want to work in a community of respect and diversity."

But some conservatives say lawyers and scholars who support religious liberty and oppose a constitutional right to same-sex marriage have been bullied into silence. "The level of sheer desire to crush dissent is pretty unprecedented," said Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford University.

Representing unpopular clients has a long and proud tradition in American justice, one that experts in legal ethics say is central to the adversarial system. John Adams, the future president, agreed to represent British soldiers accused of murder in the 1770 Boston Massacre. Clarence Darrow defended two union activists who dynamited the Los Angeles Times building in 1910, killing 21 workers. Leading law firms today have lined up to defend detainees at Guantanamo Bay, Cuba, some of whom have been accused of ties to Al Qaeda.

The Supreme Court has said criminal defendants are entitled to a lawyer. There is no right to counsel in civil cases, but most lawyers do not lightly turn away paying clients. Some lawyers, though, have been forced out of their firms for agreeing to take on clients opposed to same-sex marriage.

Whatever the reason, there is a yawning gap between the uniformity of views among legal elites and the more mixed opinions of the American public and the members of the Supreme Court. Polls indicate that while a slim majority of Americans support same-sex marriage, many remain skeptical, and the court's decision, expected in June, is likely to be closely divided.

In earlier eras, the opposing sides were more evenly matched in landmark civil rights cases. One of the lawyers who argued in favor of segregated public schools in 1953 in Brown v. Board of Education was John W. Davis, a leader of the glittering New York law firm now known as Davis Polk & Wardwell. He was the Democratic nominee for president in 1924, the ambassador to Britain and the solicitor general, and he once held the record for most Supreme Court arguments in the 20th century. …

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