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April 17, 2015

Large firms won’t argue against same-sex marriage

Washington, D.C.--The New York Times’ Adam Liptak, who has provided some of the most incisive analysis of the same-sex marriage issue in the courts, notes that the top law firms in the country will not touch defending marriage bans.

He points to the dozens of briefs filed for and against marriage with the Supreme Court, who will be hearing oral arguments at the end of the month. While a number of top-flight law firms filed briefs in favor of marriage equality, there is a lack of heavy firepower in the briefs supporting marriage bans.

“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,” he writes in an April 11 column. “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.”

Lawyers and law professors told him that, while one factor in the disparity is the comparison of opposition to same-sex marriage to racism, another is the concern that supporting marriage bans might cost them both clients and prime candidates from prestigious law schools.

Dale Carpenter, a University of Minnesota law professor, tells Liptak, “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.”

Stanford professor and former federal appellate judge Michael W. McConnell says, however, that opponents of same-sex marriage are being bullied. “The level of sheer desire to crush dissent is pretty unprecedented,” he says.

Liptak notes, “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.”

He points to John J. Bursch, who will be representing Michigan in the Supreme Court case. He works for a medium-sized firm, but they declined to work the case, allowing him to represent Michigan on his own.

“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,” Bursch says. “I am still a partner at Warner Norcross, but the firm has no involvement at all in the marriage case.”

Paul D. Clement experienced something similar in defending the Defense of Marriage Act on behalf of the Bipartisan Legal Advisory Group of the House of Representatives in the Windsor case, when his law firm withdrew from the case. Clement left and joined a smaller firm.

His resignation said, “To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.”

“Instead, 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,” he continued. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

However, Liptak points to another reason why law firms may be reluctant to defend marriage bans: all such defenses have been proven hollow and false.

“It’s so clear that there are no good arguments against marriage equality,” says Freedom to Marry president Evan Wolfson. “Lawyers can see the truth.”










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