Law Firms, Gay Marriage and Civil Rights
I once heard Sherman Alexie, a gifted writer who also happens to be Native American, have some fun at the expense of those who maintain that there is something inherently evil about homosexuality. To drive home his point that homosexuality is as old as humankind, that gays live and work with us everywhere and that the creative class – writers, composers, actors, etc. – are disproportionately represented in the gay community, Alexie challenged his audience to go home and look at the titles in their bookcase.
Chances are you’ll find on that book shelf, Alexie good naturedly said, writers who are “gay, gay, gay, Hemingway, gay, gay…”
I thought about Alexie’s humor recently as I read accounts about the big, white shoe law firm of King and Spalding dropping out as legal counsel for the U.S. House of Representatives, which intends to defend, now that the Obama Administration won’t, the so called Defense of Marriage Act (DOMA).
King and Spalding’s then-partner Paul Clement, a former Solicitor General in the Bush Administration, had signed on to handle the DOMA case for the House of Representatives for a fee of $500,000. But apparently Clement either hadn’t vetted the representation carefully enough or the leaders of the big firm decided the high-profile gay rights case represented too much controversy. For whatever reason, the firm backed out. Gay rights groups immediately claimed creditfor getting the firm to abandon the controvesial case, editorials and politicians blasted the firm for caving in to such pressure and the firm has refused to say much beyond a terse statement from the managing partner to the effect that the representation hadn’t been adequately reviewed by the firm. Meanwhile, Clement resigned in protest and took the DOMA case with him to another firm.
At least two things are going on here. One potentially involves a fundamental principle of legal representation, the other may signal a tipping point in the long-running public debate over same sex marriage. First, the legal issue.
If King and Spalding, a 125-year old, international law firm with 800 lawyers, that represents, according to its website, clients as diverse as Coca Cola and Goldman Sachs, withdrew from the DOMA case under pressure then it deserves all the flack it’s taking. If, as seems more likely for a firm that has had partners like Sam Nunn and Griffin Bell, the firm had a breakdown in assessing a potential client (and assessing how, for example, the law firm’s commitment to diversity might be impacted by taking the case) then they get a black eye for process and public relations rather than for displaying questionable legal ethics. It’s worth noting, just to make this a bit more complicated, that two of King and Spalding’s partners are representing Guantanamo detaineeson a pro bono basis.
Everyone, it is said, from the suspected murderer to the white collar criminal, deserves legal representation. However – since I’m not a lawyer I can say this – not every lawyer has an obligation to every potential client. In fact, I’ve heard lawyer friends say it, and I’ve said it in the public affairs business, “everyone is entitled to good representation, but not everyone is entitled to my representation.”
In a New York Times op-ed piece last Friday, a Minnesota law professor made a compelling case that law firms have led society’s way in creating equal opportunities for gays and minorities. Dale Carpenter wrote, “Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.” This process has been slow, but steady not unlike the larger civil rights movement that since the 1960’s has transformed the attitudes in the professions – the law particularly – regarding opportunity and equality.
This controversy also may represent a larger societial tipping point. As Supreme Court reporter Adam Liptak writes in the Times, we may be near a point where the nation’s thought-leading “elites” – including big-time law firms, the corporate community and the media – are “racing ahead of popular opinion and shutting down” what many still believe to be a worthwhile debate.” When firms like King and Spalding spend real time, money and effort on diversity in hiring and promoting, its hard not to conclude that broad public opinion is going to follow – and pretty quickly. And that is exactly what seems to be happening.
The Pew Center for the People and Press recently reported that its surveys indicate that public support for same sex marriage continues to grow with virtually the same percentage of Americans now supporting as opposing. This trend of growing support has been evident for some time, Pew notes, while the partisan divide over the issue remains deep.
“As has been the case since 1996, there is a wide partisan division on the question of same-sex marriage. Currently 57% of Democrats favor making it legal, while only 23% of Republicans agree. Independents (at 51% in favor) are more similar to Democrats than to Republicans, in part because 46% of Republican-leaning independents are supportive of same-sex marriage, along with 58% of independents who lean Democratic.”
Ten countries, including Canada and Argentina, now recognize same sex marriage and 15 other countries, including many nations that form our military coalitions in the Middle East, recognize civil unions. It’s hard not to conclude that the course on this issue is set and, whether intended or not, that King and Spalding’s decision not to represent the Congress in the Defense of Marriage Act case could further move the debate in the direction it is already clearly heading.
There seems to be a certain historical pattern to such issues. Opponents of same sex marriage, politicians and religious leaders, invoke spiritual teachings and cultural norms as the basis of their opposition. You often hear that same sex marriage will “weaken the institution of marriage.”
In a fascinating piece in the Times Magazine recently, the author of a new book on Ann Durham, President Obama’s Kansas-born white mother, notes that when Ann married Obama’s Kenyan father she did so at a time when “nearly two dozen states still had laws against interracial marriage.” It wasn’t all that long ago – 1967 in the case Loving v. Virginia – that the U.S. Supreme Court outlawed state prohibitions against interracial marriage. Incidentally, many of the same arguments advanced today against same sex marriage were used then to oppose interracial marriage.
Not surprisingly, Obama – like more and more Americans – admits that his views on same sex marriage “are evolving.” If you talk to younger Americans you’ll find little toleration for discrimination based on race or gender. They’re way beyond such things and generally can’t understand what all the controversy is about.
In his unanimous opinion in the 1967 Loving case, Chief Justice Earl Warren, the former Republican governor of California and 1948 running mate of Thomas Dewey, concluded with these words: “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
Warren repeatedly referred in his short opinion to “basic civil rights,” guaranteed under the Constitution. The Court, Warren said, has “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
It is undoubtedly some distance in the future, but it’s not difficult to imagine a Supreme Court justice writing the same sentence Earl Warren wrote in 1967 substituting the word “sex” for “race” and “gender” for “racial.”
The simplest of all explanations – the logical principle of Occam’s Razor– is almost always correct. Perhaps the big, prestigious law firm of King and Spalding simply didn’t want to be on the wrong side of history.
But let’s give Sherman Alexie the last word on this subject. To those who say that gay marriage is a threat to the heterosexual, one-man, one-woman institution of marriage, Alexie says, not true. “Gay marriage does not threaten my marriage. Beautiful, easy women with no boundaries threaten my marriage. I don’t need anyone else’s help.”