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Lawsuits & Litigation

Does Gay Marriage Hearing Demonstrate a Shift against Balanced Representation?

— April 13, 2015

In a Saturday, April 11th New York Times article, Adam Liptak illustrates how there are no attorneys from top-level firms urging the Supreme Court to vote against gay marriage in the upcoming hearing involving four different gay marriage-civil rights cases. The Court is allowing 2 ½ hours of oral arguments on April 28th, with attorneys representing the states of Michigan, Ohio, Kentucky, and Tennessee defending their states’ bans on gay marriage. Despite having the potential to be one of the most historic hearings in Supreme Court history, John J. Burch, a mid-level Michigan attorney, will be the main counsel presenting arguments. Burch may be a fine lawyer in his own right, but he is hardly among the most prominent in the country. In fact, although remaining a partner at Warner Norcross, both he and the firm’s managing partner have made it clear that the firm has no role in Burch’s participation.

It would seem surprising that more notable firms would decline to argue before the Supreme Court, including Burch’s own.  After all, the country is nearly split on the concept of gay marriage, and with the fury over Religious Freedom laws, as well as a popular Louisiana gay-marriage Religious Freedom bill being introduced, the issue would hardly appear to be settled law. Take for example, however, Paul D. Clement, former Solicitor General for George W. Bush. Clement lost a 5 to 4, 2013 decision against the Defense of Marriage Act. In 2011, in the middle of the case, Clement’s firm, King  & Spalding withdrew due to pressure from gay-rights groups. Clement, for his part, quit the firm, joined a smaller firm, and continued representing his clients. Heritage Foundation fellow, Ryan T. Anderson calls Clement’s resignation a turning point, stating “When the former solicitor general and superstar Supreme Court litigator is forced to resign from his partnership, that shows a lot.” Clement is notably absent from these proceedings, surprising  New York University law professor, Kenji Yoshino, who said, “It usually takes much longer for a position to become so disreputable that no respectable lawyer will touch it.” Gay rights groups contest that it should not be so surprising because there are no good arguments against gay marriage.

This imbalance of representation is quite a phenomenon, both historically and in contemporary context. As Liptak points out, even if firms are afraid of enabling bigotry or to be on the wrong side of history, there are many more egregious examples that they have declined to take a moral stance on. In current context, high-profile firms have represented prisoners suspected of Al-Queda ties at Guantanamo Bay as well as representing many top corporations being accused of multiple-human rights violations. There is a longstanding American tradition of high-level attorneys arguing cases that have been highly unpopular. Notable examples include John W. Davis, from the firm now known as Davis Polk & Wardwell, thought of to be the finest appellate attorney in America. Davis argued in favor of segregated schools in Brown vs. Board of Education in 1953 despite the unpopular stance. Davis also ran for president in 1924; and another notable attorney and future president, John Adams, argued for British soldiers accused of murder in the 1770 Boston Massacre. These are but a few examples of America’s tendency to provide top-level representation for high-profile litigation on both sides of the debate. The questions that remain are why is gay-marriage such a unique issue in contemporary times, and is aversion to this sensitive subject matter an anomaly, or an early sign of a larger trend?


New York Times – Adam Liptak

USA Today – Richard Wolf

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