On April 28, the eyes of the nation will turn again to the Supreme Court when it hears oral argument on the constitutionality of same-sex marriage bans. Many of us will look forward to the court determining once and for all that the Constitution cannot permit states to refuse to marry same-sex couples.
Of course, there are others who, instead of celebrating the country being on the precipice of marriage equality, are lamenting the change in public attitudes that have made the anti-equality position unpopular. Justice Antonin Scalia has long held this position, decrying the “elite” “lawyer class” beholden to the “homosexual agenda” that has forced its “insulting” views about equality on the “more plebian attitudes” of the rest of the country.
The New York Times even jumped on this bandwagon earlier this week. The Times’ Adam Liptak seemed surprised—and even a little bit sad—that no elite law firms have taken up the anti-marriage cause this time around. Instead, states fighting marriage equality have been forced to rely on their own government attorneys, mid-size or small law firms, or big-firm lawyers who must separate from their firm and work pro bono or as contract lawyers for state governments. The Times, echoing Justice Scalia, put it like this: “[S]tanding 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.”
We are neither surprised nor upset by this turn of events, either personally or as a matter of justice. That elite firms are declining to defend marriage bans is not, in any way, eroding the democratic marketplace of ideas by failing to provide a vigorous defense of an unjust cause. Worrying otherwise may sound good on paper, but it simply doesn’t hold water.
There is no reason to feel sorry for states that can’t hire the biggest, fanciest firms to support their positions against marriage equality. This attitude conflates full-throated support from powerful law firms with the production of the best possible legal arguments in favor of marriage bans. That’s not fair.
First of all, arguments about marriage equality are not that new or complicated at this point. In fact, we are in such well-trod territory that a small group of smart law students could have carefully studied the hundreds, if not thousands, of briefs and decisions from the scores of marriage cases in the state and lower federal courts and produced a reasonable facsimile of the arguments that have been put before the court this month.
When these arguments were first made in state courts in the mid-1990s, they were at least somewhat novel. Not so anymore.
Moreover, we don’t believe that even the most expensive lawyer at the most powerful law firm in the world could make any more reasonable the arguments states advance in favor of marriage bans: that it’s rational to withhold same-sex marriage from same-sex couples because it’s “good for children” or that the fundamental right to marry somehow can’t apply in this context because same-sex marriages are somehow a world apart from straight ones. Arguments like these are not improved by throwing more money and power at them. They will remain, simply, bad, expensive arguments.
Additionally, bemoaning the lack of big-firm support for marriage discrimination does a disservice to a broad array of government and small-firm lawyers who, while not employed by the elite behemoths of the legal industry, are just as skilled as their more expensive counterparts. The bias against the brilliant lawyers who work outside the spotlight of a handful of top firms is breathtaking.
If you still think that “best” equates with “most expensive,” take a look at who’s leading the charge on the other side. Consider Mary Bonauto, the lead attorney arguing on behalf of same-sex marriage. Bonauto was lead counsel in the case that first established same-sex marriage in Massachusetts; she won a MacArthur Fellowship, and she’s been referred to as the Thurgood Marshall of the LGBT rights movement. Bonauto is also a nonprofit lawyer. She works for Gay and Lesbian Advocates and Defenders, an organization with a total operating budget of around $4 million.
What’s even more troubling about this line of argument is the insinuation that somehow, elite law firms are being bullied into silence by gay rights activists. Really? We think it’s clear that something other than a combination of moral cowardice and the threat of a big gay bully is at work here. Law firms are acting like what they are—giant businesses beholden to the bottom line. Businesses, as we all know, respond to market forces and trends. The trend in this country is moving steadily in favor of same-sex marriage, and law firms are simply responding in kind by trying to avoid infuriating their customers.
They’re also responding to major shifts in internal firm culture. In the last decade or so, organizations like the National Association for Law Placement have started holding big firms accountable for hiring a diverse group of lawyers, including those who identify as LGBT. And minority bar associations like the National LGBT Bar Association have created spaces in which LGBT attorneys can feel comfortable, not only being out at work, but also networking with other LGBT lawyers. Yes, firms are feeling pressure from gay rights groups like the Human Rights Campaign—but they’re also feeling pressure from the legal industry and their own employees to create corporate cultures that treat LGBT people with dignity and respect. Putting the firm’s name on a brief arguing for a denial of their own employees’ basic human dignity isn’t just wrong, it is also counter to the aim of creating a workplace that will attract and keep the best employees.
The current state of advocacy on this issue should not raise concerns about the loss of great lawyers taking on unpopular causes. Normally, when we lawyers talk about the nobility of defending an unpopular cause, we’re referring to a situation in which a single person, often a criminal defendant, stands alone against the full power of the state. Think To Kill a Mockingbird. Think Guantanamo detainees. We dare not lose sight of the vast chasm of difference between defending human beings oppressed by the state and defending the state itself when it wishes to continue to oppress human beings.
No one needs to worry that marriage equality opponents are getting short shrift before the Supreme Court. Their position is well known and is being argued by highly competent attorneys. They’re just bad arguments, and almost everyone knows that.