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.
A community of “respect and diversity” as long as you think exactly like they do. Traditional, orthodox Christians need not apply. Former US Solicitor General Paul Clement argued for DOMA, and then, in private practice, the traditionalist side. He’s disappeared now:
Mr. Clement seems to have learned a bitter lesson from the last case, United States v. Windsor. In 2011, as it was heating up, his law firm, King & Spalding, withdrew from the case under pressure from gay rights groups.Mr. Clement quit, moving to a smaller firm and continuing to represent his clients.
“I resign out of the firmly held belief,” he wrote at the time, “that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” Mr. Clement did not respond to a request for comment.
Ryan T. Anderson, a fellow at the Heritage Foundation who opposes same-sex marriage, said the episode was a turning point. “When the former solicitor general and superstar Supreme Court litigator is forced to resign from his partnership,” Mr. Anderson said, “that shows a lot.”
This matters. When lawyers believe that even terrorists deserve a fair hearing in court, but do not believe that people who believe that what has been a near-universal standard of marriage for centuries, even millennia (at least in the West) is worthy of advocacy in court — well, it tells us how the religious liberty of orthodox Christians is likely to fare in the coming decades.
When a corporation believed to be complicit in torture is considered worthy of a fair hearing and defense in court, but people who believe what Pope Francis believes are not, we are in uncharted waters.
Signs of the times. Organize. Prepare.
UPDATE: A lawyer friend writes:
I read the NYT piece yesterday. What the article doesn’t say, but which anyone who knows lawyers knows, is that lawyers are by and large conformists. Most lawyers who were educated starting in the late 1960’s (which is for all practical purposes 100% of practicing lawyers) had held up to them as the idea, the lawyer crusading for social justice. The Warren court showed that when executives and legislatures wouldn’t act, the courts would step in and lawyers were the ones who would bring those cases to the courts.
Now almost every law school has a clinical program. They are 99% devoted to social justice causes. There might be a clinical program to protect lgbt rights, but not one for religious liberty. There might be one for immigrants rights, but not one to protect marginalized low wage workers who are adversely affected by immigrants. Law students are conditioned to be activists for the progressive side.
It is a failure of law schools not to inculcate their students about the “nobility” of fighting for unpopular causes.