As same-sex marriage proponents take their
case for "marriage equality" to the U.S. Supreme Court this month, one area of inequality remains: the prestige of legal representation before the court.
The nation's top law firms have been hands-off in representing opponents of same-sex marriage, leaving the cases to smaller offices or to lawyers working without the backing of their firms,
The New York Times reports.
That's in contrast to tradition, the Times notes. Top law firms have been happy to take on terror detainees held at Guantanamo Bay, including those with ties to al-Qaida.
The practice goes back longer than the establishment of the United States. Future President John Adams defended British soldiers accused of murder in the 1770 Boston Massacre.
More recently, the Times notes, Clarence Darrow represented union activists who killed 21 people in a dynamite attack on the Los Angeles Times building in 1910.
Even racial segregation found prominent law firms to represent its continuation. In the 1953 Brown v. Board of Education case, John W. Davis of the New York law firm now known as Davis Polk & Wardwell argued before the court on behalf of segregation.
But top firms are skittish of taking on proponents of traditional marriage.
The main lawyer opposing same-sex marriage when the Supreme Court hears arguments on April 28 in Obergefell v. Hodges will be John J. Bursch. He works for a medium-size firm in Michigan, the Times notes.
And even that firm, Warner Norcross & Judd, is not representing the case. Bursch is working on his own.
"When the State of Michigan asked me to handle the case, I asked the firm’s management committee about the engagement, and the management committee declined the representation," Bursch told the Times. "I am still a partner at Warner Norcross, but the firm has no involvement at all in the marriage case."
That's because the issue is too hot even inside the firm, said managing partner Douglas E. Wagner.
"This is an issue that engenders strong emotions on both sides for our clients, attorneys and staff," he told the Times.
That's a common concern, as is losing potential clients or being unable to recruit top talent.
Such cases have even forced lawyers out of their practices.
Paul D. Clement, former solicitor general for President George W. Bush, defended the federal Defense of Marriage Act before the high court, but his firm King & Spalding backed out in 2011 after lobbying from gay rights groups. Clement left the firm and took his clients to a smaller firm.
"When the former solicitor general and superstar Supreme Court litigator is forced to resign from his partnership, that shows a lot," Ryan T. Anderson of the Heritage Foundation told the Times.
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