I’m sure there’s a joke out there about how easy it is to get a lawyer to represent even the most heinous or ridiculous client as long as there’s a chance of a retainer or billable hours; as one of my lawyer friends says, “They’re innocent until indigent.” But what about taking up the side of a case that has a high profile — say going before the Supreme Court — and is on the unpopular side of a social issue?
Every criminal defendant is entitled to a lawyer who will defend him or her to the best of their ability. Not so with civil cases, and where the side of history is definitely moving in one direction, it’s getting increasingly hard to find prominent attorneys who will defend the other side. According to Adam Liptak at the New York Times, that’s what’s happening with marriage equality.
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.
Conservatives are claiming that attorneys who are anti-gay marriage are being “bullied into silence.” In reality, the fact is that a good attorney is going to have a rather difficult time coming up with an argument for keeping marriage bans in place that do not rely on Scriptural imprecations — not something that will go over very well in a secular court system — or by invoking some pretzel-logic that states that the Fourteenth Amendment’s equal protection clause doesn’t apply to gay people. (Several weeks ago I asked a prominent defense attorney to come up with a reason for denying gay couples the right to marry. His reply was that the way he would go would be to base it on states’ rights, but he also admitted that that line of reasoning had lost its appeal after the passage of the Civil Rights Act of 1964.)
I also think the attorneys who are shying away from defending anti-gay marriage laws are well aware that they are arguing for the wrong side both in terms of civil rights and history. And even if they should win, they will still go on the record as being the lawyer for the side that stood in the way of our inevitable movement towards full equality. That’s probably not something you want to have on your c.v.