(Reuters) - As U.S. lawsuits seeking
gay-marriage rights move toward a likely showdown at the Supreme Court
next year, major law firms are rushing to get involved — but only on the
side of the proponents.
A Reuters review of more than 100 court filings during the past
year shows that at least 30 of the country's largest firms are
representing challengers to state laws banning same-sex marriage.
Not a single member of the Am Law 200, a commonly used ranking of
the largest U.S. firms by revenue, is defending gay marriage
prohibitions.
These numbers and interviews with lawyers on both sides suggest that
the legal industry has reached its Mozilla moment. The software
company's CEO, Brendan Eich, resigned in April after being denounced
by gay marriage supporters for a donation he had made in support of
California's since-overturned gay marriage ban. Now in a similar
vein, attorneys at major law firms are getting the message that if
they want to litigate against gay marriage they should do so
elsewhere.
Earlier this year Gene Schaerr, a partner at Winston Strawn in
Washington, D.C., quit the 850-lawyer firm so he could represent his
home state, Utah, in its defense of a ban on same-sex marriage.
Schaerr, a Mormon, told colleagues in an email that became public
that he was following his "religious and family duty." Schaerr
declined to comment, as did a Winston Strawn spokeswoman.
Same-sex marriage is legal in 19 of the 50 U.S. states, and in the
District of Columbia. Last June, in the milestone U.S. v. Windsor
case, the Supreme Court struck down a federal law defining marriage
as between a man and a woman for purposes of federal benefits.
Emboldened by that decision, gay and lesbian couples have launched
at least 70 lawsuits calling for a broader right, and three cases
have been heard by federal appeals courts.
PRO BONO PROGRAMS
In many of the cases, law firms filed friend-of-the-court briefs on
behalf of allies including gay-rights groups, law professors and big
companies such as Amazon <AMZN.O>, Google <GOOGL.O> and Starbucks
<SBUX.O>. In some cases, big law firms have made a larger commitment
and are representing parties to the litigation. Virtually all are
working for free or at cut rates as part of their "pro bono"
programs to provide legal services they deem to be in the public
interest.
The 850-lawyer firm Akin Gump, for example, sued the state of Texas
last year on behalf of two same-sex couples and has filed
friend-of-the-court briefs in the appeals cases testing Utah,
Oklahoma and Virginia bans. The firm said it has donated at least
1,100 hours so far in the litigation.
States defending gay marriage bans are represented by state
government lawyers, but some have also turned to outside counsel.
According to the Reuters review, the private attorneys who have
signed up to represent states or are backing allied groups with
friend-of-the-court briefs are predominantly from religious and
conservative organizations, such as the Alliance Defending Freedom
and the Beckett Fund, or are from small law firms.
Several lawyers opposed to same-sex marriage rights said they
believed big firms would not litigate for that side even if
attorneys asked to do so. They pointed to the example of Mozilla's
Eich as an example of the pressures being faced.
Andrew Pugno, a lawyer for the group that defended California's ban
when it was challenged by same-sex couples, said he considered big
firms when searching for someone to argue the case. In at least one
situation, Pugno said, a lawyer at a big firm was interested but
partners refused to let him take on the work. He declined to
identify the person or firm.
“I personally know many good lawyers in large firms who ... are
terrified of speaking out even within their own firms,” said Pugno,
who has a small firm near Sacramento, Calif. He declined to name
any.
THE CLEMENT EPISODE
Opponents of gay marriage also referred to Paul Clement, the
prominent Washington, D.C., litigator who quit his law firm, King &
Spalding, in 2011 after it withdrew as counsel for a congressional
group defending the federal law that defined marriage as between a
man and woman.
In his resignation letter, which was made public, Clement said he
acted "out of the firmly-held belief that representation should not
be abandoned because the client's legal position is extremely
unpopular in certain quarters. Defending unpopular positions is what
lawyers do." Clement now works at a small firm.
Law firms are also
sensitive to an annual "corporate equality" index published by the
Human Rights Campaign, a gay rights advocacy group. It awards points
for such factors as benefits to same-sex partners and support for
gay-marriage litigation, and docks those who oppose it. Most law
firms get "100%" ratings, but in its 2011 index Human Rights
Campaign rated the 900-lawyer firm Foley & Lardner "85%" and dropped
it to “60%” the following year. Explaining its ratings in
accompanying literature, the group said Foley & Lardner had chosen
to represent “clearly discriminatory clients.”
During that period, the firm represented a group, National
Organization for Marriage, that challenged the District of
Columbia’s law allowing gay unions. The case failed, and the
representation ended. In its next report, for 2013, the Human Rights
Campaign raised the firm's rating to "100%." A Foley & Lardner
spokeswoman declined to comment on the episode.
"Fear is a healthy motivator to do the right thing,” said Fred
Sainz, a spokesman for the Human Rights Campaign. “I’m not
suggesting that the other side shouldn’t have attorneys. I’m saying
we’re going to judge those attorneys."
Lawyers at major firms working for gay marriage say they feel a
societal obligation. There is a "desire to advance an extremely
important equality issue," said Kimberly Parker, chair of the pro
bono committee at WilmerHale, a 1000-lawyer firm that filed a
friend-of-the-court brief on behalf of a gay-rights advocacy group
in the Utah, Oklahoma and Virginia cases.
At WilmerHale, as at many firms, pro bono projects are typically
proposed by individual lawyers and then screened primarily for
possible conflicts of interest with existing clients.
Some law firms also say their efforts can be good for business,
particularly when it comes to relations with corporate clients that
have internal policies supporting gay rights, and in efforts to
recruit young lawyers.
Theodore Olson, a partner at Gibson Dunn, argued against Virginia's
marriage ban in May and has advocated for gay marriage since he and
another top litigator, David Boies, challenged California's
Proposition 8 in 2009.
Before that, Olson was best known for arguing on behalf of
conservatives in major Supreme Court cases such as the one in 2000
that allowed George W. Bush to take the White House and the 2010
decision striking down major campaign-finance regulations in the
Citizens United case.
Now, he says, potential recruits see him differently. “I had no idea
how popular I would be on law school campuses,” he said, adding
jokingly: “All of sudden, the monster I was from Bush v. Gore and
Citizens United is gone.”
(Reporting By Joan Biskupic; Editing by Amy Stevens and Martin
Howell)
