The legal profession typically affirms its proud tradition of defending the unpopular. Lawyers will often agree to represent a reviled defendant because they understand that our adversarial system requires vigorous representation on both sides if justice is to prevail.
A strong legal defense is even more important when the issue is subjected to heated and emotionally charged public debate. We, as attorneys, have been doing this from before our founding, as when John Adams represented eight British soldiers accused of murder during a riot in Boston. We continue to do it to this day. One such example would be Judy Clarke, a renowned criminal defense attorney, who stepped forward to represent Dzhokhar Tsarnaev. Two years ago, Tsarnaev was charged with the terrorist bombings at the Boston Marathon.
Despite this proud tradition, not one of the nation’s top law firms is involved in defending the marriage cases pending before the U.S. Supreme Court. At least on this issue, these firms have jettisoned the idea that everyone deserves representation, and betrayed the long-held principle of the legal profession that we must defend the unpopular.
As Adam Liptak at the New York Times puts it:
“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.”
At Slate, David Cohen and Leonore Carpenter stepped in and tried to defend the firms:
“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.”
That’s baloney. Everyone knows that the “elite” cultural institutions—including academia, Big Business, and apparently all of Big Law—are fully supporting and hoping for a ruling which would block people from deciding how their states will deal with the issue of marriage. Such an imbalance of power certainly erodes anything resembling free debate. Can anyone seriously claim there is a “marketplace of ideas” within these elite institutions, where at this very moment people supporting natural marriage are being hounded out of their jobs?
Different views are required for a “marketplace,” and at this point, all of those on one side of the marriage issue are being silenced. There is no open and free “marketplace of ideas” at these elite law firms. It is laughable to say that the clear pattern of conformist thinking at these firms is insignificant.
The Slate writers spend the rest of their article trying to distinguish the marriage cases from other situations involving unpopular representation, or attempting to argue that this lack of representation really doesn’t matter. Of course, everyone knows that’s not true, in that the very reason that big firm pro bono services are offered or sought to defend an unpopular or disfavored position (from defending death row inmates to Guantanamo detainees) is that their quality legal services do make a difference. The Slate writers are understandably insecure about this point, and spend much time trying to make it repeatedly, perhaps hoping it will go away. But it won’t.
Nearing conclusion, they state:
“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.”
Great. So can we expect that Chief Cochan—fired for expressing the views of his faith on human sexuality—will be receiving the services of one of a number of major law firms located in Atlanta? He’s certainly “a single person” standing “against the full power of the state.” Or is he somehow not “oppressed by the state?” I’m not holding my breath waiting for Big Law to offer its services in this or similar matters.
However, I would love to be proven wrong.
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