Why “big law” won’t defend the constitutionality of bans on gay marriage

Not long ago, in the context of the controversy over Indiana’s Religious Freedom Restoration Act, I complained that corporate America won’t stand up to the increasingly totalitarian tactics of the gay rights movement and its leftist supporters. This is not surprising, I added, because “history teaches that corporations are hardly a bulwark against totalitarianism.”

What’s true of corporations is true in spades of their handmaidens, big law firms. I worked in “big law” for more than 30 years. I doubt there’s an industry in America more plagued by a follow-the-herd mentality.

Thus, we should be appalled but not surprised by Adam Liptak’s report in the New York Times that, in one of the most significant Supreme Court cases of the decade, no big law firm is urging the Justices to rule that laws banning gay marriage are constitutional — not good or enlightened policy, merely constitutional:

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.

To Liptak’s list of causes corporate law firms have embraced without a second thought, we should add terrorist rights. During the Bush years, law firms were tripping over each other to find terrorists to attempt to free, and then rushing to publicize their work. It reminded me of splinter Marxist groups in the 1960s, each of which had to have an imprisoned militant “of color” to champion.

Though I would have preferred to lose my law license than to defend a terrorist, I had no problem with lawyers whose preference was different. What bothered me was not the attorneys but the law firms that took so much pride in the enterprise — one they likely would have curtailed had there been significant client push back.

The same herd mentality at work back then is on display now when it comes to gay marriage. Some attorneys tried to convince Liptak that big firms won’t defend gay marriage bans because there is no non-frivolous argument in favor of these laws. Evan Wolfson of “Freedom to Marry” says, “It’s so clear that there are no good arguments against marriage equality; lawyers can see the truth.” (Wolfson’s professed naivety about lawyers is almost touching).

This is rubbish. Four Supreme Court Justices are likely to uphold the constitutionality of a ban on gay marriage, so this position is hardly too absurd to defend. Moreover, it’s not “lawyers” who have shied away from defending the constitutionality of the ban, it’s lawyers in big firms.

This is no accident. Big law firms are afraid of being out of step with corporate America, which has embraced gay marriage. They fear client disapproval, and this trumps what Liptak calls the “long and proud tradition” of “[r]epresenting unpopular clients” — a tradition, it should be noted, that arose when there was no such thing as “big law.”

How far has “big law” moved away from that tradition? Liptak reports, that “some lawyers. . .have been forced out of their firms for agreeing to take on clients opposed to same-sex marriage.”

Our friend Prof. Michael McConnell of Stanford, a former court of appeals judge, finds that “the level of sheer desire to crush dissent is pretty unprecedented.” I agree. We are witnessing the product of a movement with a totalitarian bent, coupled with a shockingly docile industry.