Top Law Firms Staying out of Gay Marriage Battle
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Although briefs have been filed in the Supreme Court on both sides of the gay marriage debate, not a single major law firm has voiced support against gay marriage.

Summary: Although briefs have been filed in the Supreme Court on both sides of the gay marriage debate, not a single major law firm has voiced support against gay marriage.

Although gay marriage is a hot legal issue right now, according to the New York Times, the top law firms do not want to argue against gay marriage. Although many Supreme Court briefs have been filed on both sides of the argument, there is not a single major law firm that has advocated against gay marriage.


Interestingly, top law firms will represent tobacco companies that have withheld information about the true dangers associated with their products, factories that dump pollution into the environment, and corporations that turn a blind eye to murder and torture overseas. However, fighting for “traditional” marriage is not a battle these firms are willing to fight.

In several interviews, attorneys and professors explained that the imbalance in the argument was the result from a conviction that many attorneys hold that opposition to marriage between one man and one woman is comparable to racism. Additionally, those firms that speak out against gay marriage may lose clients and prospective hires. Dale Carpenter, a law professor at the University of Minnesota, said, “Firms are trying to recruit the best talent from the best law schools, and the overwhelming majority of them want to work in a community of respect and diversity.”

In Alabama, a Supreme Court Chief Justice backed a gay marriage ban.

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Some conservatives argue that lawyers and scholars who support religious freedom and oppose a constitutional right to same-sex marriage have essentially been bullied into staying quite. “The level of sheer desire to crush dissent is pretty unprecedented,” Michael W. McConnell, a Stanford law professor, explained.

Of course, representing unpopular clients is central to the history of the legal profession. John Adams agreed to represent British soldiers who were accused of murder in the 1770 Boston Massacre. Clarence Darrow defended two union workers who set off dynamite in the Los Angeles Times offices in 1910, killing 21 people. Today, law firms have represented detainees at Guantanamo Bay, many of whom are accused of having ties to Al Qaeda.

The Supreme Court has ruled over and over that criminal defendants have a right to an attorney, although there is no such right in civil cases. However, many attorneys will not refuse a paying client. Some attorneys have been forced out of their firms for taking on clients who argue against gay marriage.

Clearly, there is a gap between the uniformity of views among legal scholars, the Supreme Court and the American public. Many polls show that while just over half of American support same-sex marriage, many are skeptical. The Supreme Court’s June decision is predicted to be a closely divided one.

One case was slated to determine the fate of the issue nationwide.

Arguments are scheduled to begin on April 28 in the Supreme Court. According to CNN, the roster of attorneys who will be arguing is still unclear. However, the main attorney who has stepped up to argue against same-sex marriage is John J. Bursch, who practices at a medium-sized firm located in Michigan. He previously served as the solicitor general and has argued eight cases before the Supreme Court. His firm, Warner Norcross & Judd, will not be supporting him. He explained, “When the State of Michigan asked me to handle the case, I asked the firm’s management committee about the engagement, and the management committee declined the representation. I am still a partner at Warner Norcross, but the firm has no involvement at all in the marriage case.”

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Douglas E. Wagner, the managing partner of the firm, explained that the issue was just too controversial. “This is an issue that engenders strong emotions on both sides for our clients, attorneys, and staff.”

Bursch’s experience echoes that of Paul D. Clement, who defended the Defense of Marriage Act, a law that denies benefits to married same-sex couples. He lost that Supreme Court argument in a 5-4 vote. Clement has not made an appearance in the present arguments.

As the Defense of Marriage Act arguments were beginning in 2011, his previous firm, King & Spalding, withdrew from the case after being pressured by gay rights groups. Clement quit the firm, and began practicing with a smaller firm to continue in the case.

Clement commented, “I resign 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.”

Ryan T. Anderson, a fellow at the Heritage Foundation who also opposes gay marriage, said that the incident was a major deal. He explained, “When the former solicitor general and superstar Supreme Court litigator is forced to resign from his partnership, that shows a lot.”

Briefs were filed in the Supreme Court in September, explaining arguments on both sides of the issue.

Gay rights advocates have also hypothesized as to why big law firms are located on one side of the issue. Evan Wolfson, the president of Freedom to Marry, said, “It’s so clear that there are no good arguments against marriage equality. Lawyers can see the truth.”

Kenji Yoshino, a professor at New York University Law School, said that the attitude developed quickly: “It usually takes much longer for a position to become so disreputable that no respectable lawyer will touch it.” Yoshino also authored “Speak Now,” a history of the challenges to Proposition 8, California’s same-sex marriage ban. Tensions on the issue have definitely been mounting nationwide as the Supreme Court argument date approaches, according to the Washington Post.

Clockwise from top left:

Clockwise from top left: Bursch, Carpenter, Yoshino, Clement, McConnell, and Cooper

Charles J. Cooper argued for Proposition 8, and filed a supporting brief in the current case. He said that, because he worked for a small firm, he could do so. “The issue is too volatile, too controversial, too much of a tear in the fabric of the partnership” for a big law firm, he explained.

McConnell said that he has learned to keep quiet about the issue. He said, “You’re going to shut up, particularly if you don’t care that much. I usually just keep it to myself.”

Source: New York Times

Photo credit: Wikipedia




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