As U.S. lawsuits seeking gay-marriage rights move toward a likely showdown at the Supreme Court next year, major law firms are rushing to get involved — but only on the side of the proponents.
A Reuters review of more than 100 court filings during the past year shows that at least 30 of the country’s largest firms are representing challengers to state laws banning same-sex marriage. Not a single member of the Am Law 200, a commonly used ranking of the largest U.S. firms by revenue, is defending gay marriage prohibitions.
These numbers and interviews with lawyers on both sides suggest that the legal industry has reached its Mozilla moment. The software company’s CEO, Brendan Eich, resigned in April after being denounced by gay marriage supporters for a donation he had made in support of California’s since-overturned gay marriage ban. Now in a similar vein, attorneys at major law firms are getting the message that if they want to litigate against gay marriage they should do so elsewhere.
Earlier this year Gene Schaerr, a partner at Winston Strawn in Washington, D.C., quit the 850-lawyer firm so he could represent his home state, Utah, in its defense of a ban on same-sex marriage. Schaerr, a Mormon, told colleagues in an email that became public that he was following his “religious and family duty.” Schaerr declined to comment, as did a Winston Strawn spokeswoman.
Here’s a telling remark:
Theodore Olson, a partner at Gibson Dunn, argued against Virginia’s marriage ban in May and has advocated for gay marriage since he and another top litigator, David Boies, challenged California’s Proposition 8 in 2009.
Before that, Olson was best known for arguing on behalf of conservatives in major Supreme Court cases such as the one in 2000 that allowed George W. Bush to take the White House and the 2010 decision striking down major campaign-finance regulations in the Citizens United case.
Now, he says, potential recruits see him differently. “I had no idea how popular I would be on law school campuses,” he said, adding jokingly: “All of sudden, the monster I was from Bush v. Gore and Citizens United is gone.”
It was a wisecrack, but there’s a truth in it: all that seems to matter to law students today is where a lawyer stands on gay rights. Not whether or not unpopular causes (the Bush 2000 campaign, Citizens United, religious liberty) are entitled to good representation, but whether or not lawyers are on the “right side” of this one issue.
Justice Scalia more or less told us this would happen, in his 2003 Lawrence dissent:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” ismandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no morerequire a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
Law firms have the right to govern themselves, and have the right to decide who they want to serve (a right that does not extend to Evangelical Christian wedding-cake bakers, it would appear). I think it’s important to protect the right of law firms to refuse to take on cases they believe are “anti-gay”. But I think it is a sign not of high principle, but of corruption, when a law firm will not allow one of its lawyers to represent a client whose religious beliefs are unpopular within the legal culture.
This is the world in which orthodox Christians have to live and work now. Error doesn’t even have a right to a good legal defense, or to defend the erroneous.