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Sunday, April 12, 2015

Top US firms cold-shouldering antigay cases

English: Panorama of the west facade of at dus...
Panorama of the west facade of at dusk in Washington, D.C., USA. (Photo credit: Wikipedia)

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.”

As usual, conservatives are claiming to be victims.

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...

When the Supreme Court hears arguments on April 28 in the marriage cases, among them Obergefell v. Hodges, No. 14-556, the main lawyer opposing same-sex marriage will be John J. Bursch, who practices at a medium-size firm in Michigan. He served as the state’s solicitor general and has argued eight cases in the Supreme Court. But his firm, Warner Norcross & Judd, will not be standing behind him.

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

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

Mr. Bursch’s experience was similar to that of Paul D. Clement, who served as solicitor general in the George W. Bush administration and has argued more than 75 cases in the Supreme Court. He defended a federal law, the Defense of Marriage Act, that denied benefits to married same-sex couples, losing in the Supreme Court in 2013 by a 5-to-4 vote. He is conspicuously absent this time around.

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...

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.”

Complainers like Judge McConnell and Paul Clement (McConnell walked away from a lifetime appointment one rung under the Supreme Court to a tenured teaching post at one of the nation's best law schools) want it both ways: they feel entitled to enjoy all the perks and prestige of a national law firm, while being able to take cases the majority of their partners fear will cost their firms clients and recruiting picks that will hobble their viability long after the trendy, if unpopular, case is long over, while being insulated from both consequences and unpopularity.

It's one thing to represent an unpopular cause or person; sharing that view; it's another to share it personally and believe it should be the law. The latter makes it reasonable, from a conservative point of view, to invoke ideas like freedom of contract and association.

Again, to take the conservative view, a business with a stated policy on diversity and nondiscrimination may not want to have its legal work handled by a firm one of whose most prominent members is leading the appellate charge for the opposite position.  Law firms, and corporations, want to survive and prosper. As Mitt Romney famously said, "Corporations are people, my friend."

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage. 
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.” 
Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down. 
So, let’s review the evidence: by the Weekly Standard’s definition, there’s “nothing significant” about this law that differs from the federal one, and other state ones—except that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.
Anyone can hold unpopular views. Anyone can represent others who hold unpopular views. But no one is insulated from paying whatever price the marketplace- of commerce and ideas- exacts. That's liberty at work. If you want to make it legal to marginalize, slur, and discriminate against others as a matter of law, others may decide that is what they will, voluntarily, do to you as well.

Liptak reports,
Charles J. Cooper, who argued for Proposition 8, filed a supporting brief in the new cases. In 2009, he explained that he was able to handle the Proposition 8 case because he worked at a small firm. “The issue is too volatile, too controversial, too much of a tear in the fabric of the partnership” for a major law firm, he told The Legal Intelligencer. He declined a request for an interview.
And former Judge McConnell reveals a temperament perhaps better suited for academia than the bench:
The current climate, Professor McConnell of Stanford said, means that important distinctions are being lost. One is that it is possible to favor same-sex marriage as a policy matter without believing that the Constitution requires it. 
But this is, he said, a topic he has learned to avoid. “You’re going to shut up, particularly if you don’t care that much,” he said.

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