Here’s my take on the K&S “kerfuffle,” Orin’s mot juste. I don’t disagree with much of what my fellow Conspirators have said, especially regarding the heavy-handed talk of boycotts and secondary boycotts. I don’t think we pull out the heavy artillery of a boycott of lawyers taking on causes and clients we despise except in the rarest cases, none of which occur to me at the moment (at least in the real world rather than the law-school hypotheticals world). Defending a constitutionally defensible but very bad law is not such an occasion.
But I do think there is a way to understand K&S’s decision as something more than just the tale of a cowardly sheriff handing Atticus Finch over to the lynch mob. I consider this controversy an episode in the historically fraught relationship between the legal profession and gays and lesbians:
Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.
But it was a process that took a half-century to unfold. In 1961, a Harvard-trained astronomer, Frank Kameny, stood alone against the federal government. Fired from his federal job simply for being gay, he wanted to petition the Supreme Court. But at a time when all 50 states still criminalized sodomy, even the American Civil Liberties Union declared it had no interest in challenging laws “aimed at the suppression or elimination of homosexuals.” Mr. Kameny wrote his own appellate brief; without comment, the court turned him away.
Over the next quarter-century, lifted by gales of change in sexual morality and in the status of women, gay-rights advocates mobilized at every level of the legal profession. In the late 1960s, they successfully challenged the antigay civil service policies under which Mr. Kameny had been discharged. In 1973, a small group of gay lawyers formed the Lambda Legal Defense and Education Fund, enlisting the help of prominent heterosexual lawyers. They drafted legislation protecting gays from discrimination in housing and employment.
At the same time, gay-rights supporters began lobbying law schools, and then professional organizations like the American Bar Association, to adopt nondiscrimination policies. With these in place, they pressured schools to exclude law firms from on-campus recruiting unless they agreed not to discriminate against gay students in hiring. The Association of American Law Schools endorsed this approach. These developments paved the way for firms that had once fired suspected homosexuals to adopt their own nondiscrimination policies.
By 2003, not a single major national law firm supported the Texas sodomy law before the Supreme Court, yet there were constitutionally defensible arguments to be made even in the case of that very nasty law. This was not an abandonment by those firms or prominent lawyers of a legal duty to defend an unpopular cause or client.
One difference between the K&S case and Lawrence is that K&S actually undertook the representation for about a week. It’s hard for me to work up much dudgeon about that based on harm to the client (the House) or to the zealous defense of its cause (DOMA). Another difference is the potential of blacklisting K&S, and the possibility that fear of such blacklisting, rather than an awakening to the firm’s own principles and priorities, is really what drove the decision. I suppose this would have been the case with a firm that considered defending the Texas Homosexual Conduct law, too.
Personally, I have no problem with a law firm or an individual lawyer representing Congress in a case like this. In fact, the better the lawyer the better and more interesting the contest will be. Go to it, Mr. Clement! We’ll see you in the arena. Much more important to me as a moral matter is the kind of argument made and the tone in which it is offered. I expect DOMA’s new counsel will not indulge the rancid gay-baiting we saw in many of the amicus briefs supporting the Texas sodomy law.
But given our profession’s checkered history, I can understand why others would be far more sensitive about an important law firm’s decision to use its considerable power to defend, even just as a constitutional matter, the exclusion of married gay couples and their families from all federal benefits.