The Legal Profession’s Failure Of Professionalism Regarding Gay Marriage


Charles Green helpfully sent me the link to today’s New York Times piece documenting how…

“the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.”

“Am I right that something’s quite amiss here?” he asks. Indeed he is, and I’ve touched on it before.

There are several factors at work here, but the result is deplorable, and indictment of the corrupt values of the legal profession. One of the factors is bias, and it is a bias that the lawyers themselves are either unaware of,  or are unwilling to avoid its effects as their professional codes of ethics require.

The majority of high-powered lawyers hail from urban centers where liberal culture flourishes among the wealthy, the powerful and the influential. These are cosmopolitan lawyers, sophisticated and urbane, who have gay colleagues, gay friends and gay children. They are less likely to be religious, and more likely to have contempt for those who are. Combine with them the legal academics who drive consensus on legal ethics matters—like most academics, they have marinated in the extreme leftist attitudes of U.S. academia—and it becomes clear why, as Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford, tells the Times, “The level of sheer desire to crush dissent is pretty unprecedented.”

I noticed this in 2011, when the legal ethicists I follow, know and debate with decreed virtually en masse that a judge who was not only gay himself but in a long term domestic relationship with his partner had no ethical obligation to recuse himself before he issued the decision on the constitutionality of California’s anti-same sex marriage Proposition 8. Nor did they feel he was ethically obligated to disclose his situation before ruling. I wrote:

Almost all of these distinguished ethicists—people whom I read, respect, and frequently quote,  also fervently argued five years ago that Justice Scalia’s participation in a large duck hunt with then-Vice-President Cheney created sufficient public doubts about the integrity of the judicial process that he should have recused himself from a Supreme Court case that had Cheney as a named party, and I agreed with them. But if you interviewed 100 reasonable, non-partisan fair and objective members of the public, is there any question that the vast majority of them would agree that a judge in an undisclosed same-sex relationship, deciding the constitutional status of gay marriage in the state in which he resides, has a far greater appearance of bias problem than a Supreme Court Justice who had participated in a duck hunt with one of the individuals named in the suit in his official (as opposed to personal) capacity?

To read the frankly insulting commentary issuing from otherwise respectable sources, you would think  we live in Bizarro World. These experts argue that to even suggest that Walker had the appearance of bias is tantamount to bigotry….that’s a problem, because the recusal rules are not there to protect the regard in which the judicial process and the rule of law is held by elite, progressive Democratic lawyers and ethics professors. It is there to ensure the faith and trust of the public—the normal people, the 99.99% who base their judgments on life experiences and not on reading legal ethics opinions, codes of conduct and legal ethics treatises all day long. And those people, the ones whose belief in the fairness of the judicial system is critical to the the nation’s vitality and existence, do not go through the labyrinthine, and I think, cynical, legal ethics analysis required to conclude that Judge Walker had no obligation to reveal his domestic status, because, really, it was completely irrelevant. They hear about Judge Walker’s late disclosure, and raise an eyebrow…because it raises reasonable doubts.

They think, in other words, that the case may have been fixed.

…The legacy of this case, future appeals aside, is that a measure voted on and approved by California voters was overturned by a judge who had an apparent personal interest in the subject matter of the case, an appearance of a conflict which he intentionally failed to disclose until a full year after his decision, and the legal elite and academics brushed all of this aside as unimportant because they want same-sex marriage on the books.

I concluded with this…

We are going to have legal same-sex marriage, in California and the rest of the country, sooner or later. That will be a positive development. The troubling question is whether the judicial system will have any perceived integrity left by the time it happens. It will not, if those who are charged with identifying and criticizing professional conduct that jeopardizes public trust in our courts allow their political and social beliefs to warp their own independent judgment.

Sadly, I was even more correct that I thought I would be.

Then, later that same year, the debacle occurred in which a large and distinguished law firm that had taken on the defense of DOMA—remember, it was the law of the land then, signed into law by the noble husband of the recently-declared annointed Dem0cratic selectee to succeed Barack Obama as “National Trialblazer”—and capitulated to the pressure of its largest client’s insistence that it drop the case. I wrote at the time that this was a horrific breach of the ethical traditions of the law. Paul Clement, the lead lawyer in the case who resigned from the firm in protest, received an Ethic Hero designation here by writing, in his letter:

“…defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

Yet the episode represented an ugly truth that had little to do with DOMA or even the legal profession’s bias in favor of gay marriage. The requirements of big business are incompatible with the integrity required of legal professionals. Fiduciary duties in a business require responsible management decisions in the quest for profits; legal professionalism dictates that lawyers put their personal beliefs and financial needs aside in order to ensure that unpopular people, movements, organizations and positions are represented, defended and given a chance to prevail in our system on their merits. I raise the Clement fiasco in my legal ethics seminars for law firms, and point out that it is unethical in every way for a lawyer to even discuss another client’s matter with a second client’s representative. Nobody, literally nobody, disputes it. And yet when I ask if that firm would meet with its biggest client if it expressed concerns about an adverse reaction to the firm’s high-profile representation of an unpopular cause, every lawyer agrees that they would. In the real world, they won’t sacrifice millions of dollars worth of annual business for principle, even though it is among the defining principles of the profession.

So yes, a lot is amiss. Bias has infected a profession that makes the avoidance of bias a core value, and the legal profession’s financial realities are corrupting its integrity.  In the long run, the second is far more dangerous to the profession and society than the first.

22 thoughts on “The Legal Profession’s Failure Of Professionalism Regarding Gay Marriage

  1. Just as a slight expansion on the above, it’s ironic, and reflective of all you just wrote, that folks like Lynn Stewart, who defended the first World Trade Center bombing mastermind but later overreached into criminal activity herself, and perennial radical-defender William Kuntsler are praised as heroes of dissent, while someone like Paul Clement is vilified.

    BTW, I’m a lawyer in the largest city in my state, and I consider myself as sophisticated as anyone else, yet somehow I haven’t managed to get infected by liberal groupthink. I’ve concluded that in the end the Fourteenth Amendment probably DOES point to civil same-sex marriage, and on the religious side we need to “render unto Caesar what is Caesar and to God what is God’s” but coercion and bullying are wrong, and, in the end, will be counterproductive. Remember all those cases that allow strong believers in whatever (it doesn’t even have to be a religion) to turn down military service? Maybe it’s time for a second look at those.

    • Is the moon in some weird quadrant today? Is there something in the water supply? Am I really in 100% agreement with Steve-O-in-NJ on something? Will wonders never cease.

    • “I’ve defended Jeffrey Daumer, I’ve defended Ken Lay; I’ve defended BP; I’ve defended Bernard Madoff, rapists, child abusers, druf pushers and worse…but YOU, sir, who oppose a legal redefinition of marriage after centuries of consensus, are too horrible to represent in good conscience!”

  2. It is very telling that Eric Holder defended Paul Clemen t. These lawyers have less ethics than Holder.

    the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism.

    Such a conviction reveals a great degree of ignorance. The concept of sexual orientation did not exist until the mid-19th century. Since defining marriage as between a man and a woman predates that time, it is plain and clear that the purpose of marriage was not to oppress homosexuals.

  3. Jack – what more do you need to confirm that the fix has been in on gay marriage for a number of years?

    Breitbart News has more:

    Jack… there may be no more question whether or not gay marriage happens, but now the other questions come to the forefront. I don’t think it stops there.

    So, the price of LGBT equality includes not only compelled expression, but it also means that social conservatives now get discriminated against at major law firms (usually on the basis of religious beliefs). Even core legal ethics are sacrificed to placate the LGBT community.

    Ready to re-think RFRA laws?

    • Nope.

      They are separate issues.

      1) Is recognition of gay marriage required by ethics and the Constitution? Are all human beings deserving of respect and the right to life, liberty and the pursuit of happiness?

      2) Have the means whereby recognition of these principles have been, are being and will be established in law and the culture been sufficiently fair, transparent and ethical?

      I have always examined these issues separately and continue to do so. The need for the first to be answered in the affirmative does not make the answer to the second “yes.” The fact that the answer to the second is “no” doesn’t change the answer to the first.

      • With the answer to question number two being “No,” and it becoming increasingly so, at what point does it start to affect the answer to question number one? I wonder if you are not falling victim to Rationalization #13 on this… I don’t think you can sustainably obtain an ethical result via unethicals means.

        In a number of these other instances, I would argue that we are seeing other Rationalizations, notably #2, #14, and #31 from other supporters of same-sex marriage as well.

        • What? The end isn’t changed by the means. Of course you can achieve ethical ends by unethical means. That makes the actor unethical, not the objective itself. The Saint’s Excuse holds that an unethical act is excused and sanctified by good intentions and a worthy goal. It’s not, and neither are those engaging in it.

          • This does beg the question about the motivations of the leadership.

            Almost all of the rank-and-file sincerely believe that expanding the definition of marriage would be good for America. But the leadership is willing to use unethical means, means too extreme for both Attorney General Eric Holder and the Los Angeles Times editorial board .

            I suspect that the leadership is certain that this would destroy America, and that is why they support it. As such, they do not care how many legal and ethical precedents they have to cast aside. Their goal is to destroy America, so destroying those precedents helps their cause.

            What if they are right?

            • What does destroy America mean and what do you base that on?

              Mr. Marshall is, and correct me if I’m wrong, calling them well intentioned extremists, anti-villains if you will. How do you make the leap from Magneto (Crush the threat) to ‘kneel before Zod?’

  4. So now every gay or transgender judge must recuse himself or herself on every issue regarding LGBT rights? Will it suffice for they just to reveal their sexual orientation instead? That way we can know for sure where their safely assumed biases lie. Once we’ve ferreted them out, we can further inquire as to their religious beliefs and whether they pee standing up or sitting down. We’ll just assume all the other judges who haven’t publicly declared their queerness are solidly heterosexual and thus “normal” (like 99.99% of society) and absolutely no threat to fairness in the legal system.

    Must we assume that a heterosexual judge will be more unbiased and fair? That’s ridiculous. Scalia, for example, certainly an avowed heterosexual manly man, has made his own prejudices and bigotry against all sorts of groups known for many years, yet there is no clamor to remove him from the bench, though many would love to see him retire or, better yet, drop dead. Judges are appointed or elected and the chips fall where they may. Just because you personally don’t like a gay man on the bench doesn’t mean he’s ethically obligated to recuse himself from a case regarding gay rights. I didn’t see you call for the recusal of any of the very few federal judges who ruled against gay marriage. The larger issue you’re missing here is the constitutionality of gay marriage. Or do only your own prejudices figure into your argument while the U.S. Constitution remains an irrelevant nuisance?

    Your logic would also demand that all racial-minority judges recuse themselves from civil rights cases. And let’s make sure they don’t preside over cases with black defendants because they’ll be unduly lenient, as would any black jurors. So the only fair way to judge a black defendant is with a white judge and a white jury. And of course that’s also the only fair way to judge white defendants; blacks would be far too prejudice. (Unless they’re black Republicans like Uncle Clarence Thomas. Then it’s okay to assume they’ll be fair an unbiased in their decisions–wink wink.)

    Don’t like the LGBT/race comparison? Think it’s apples and oranges? Tough. It’s not. Both are about making the worst assumptions you feel like making based on stereotypes and centuries of hate-mongering and using those assumptions to deny them the ability to fully participate in society, as your condemnation of the gay judge does.

    And why do you think lawyers are suddenly abandoning their ethics? Do you think lawyer jokes have always been an unfair representation of reprehensible lawyerly behavior? Your babe-in-the-woods naïveté about unethical lawyers, which many would say is a redundant description in the extreme, is a little hard to swallow. (Gay sexual pun intended.)

    • So now every gay or transgender judge must recuse himself or herself on every issue regarding LGBT rights?

      No, only those cases where they or their immediate relatives would have had Article III standing to either file the complaint, or to appeal the judgment.

      In the vast majority of cases dealing with LGB rights and T rights (I do not lump people merely attracted to those of the same sex with those who refuse to accept the biological reality of their anatomies), the judges nor their immediate relatives would be able to personally benefit from the judgment, or any appeal arising from a judgment in the case. Judge Walker by contrast had a relationship which could have given him standing to sue to enjoin the very law on whose constitutionality he was being asked to judge. He was required to disclose because he himself would have had standing.

      • No, any judge who stands to personally benefit from his ruling in any case needs to recuse himself from hearing it. It’s called conflict of interest. The point isn’t that Walker was gay, it was that he was in a relationship that stood to benefit from marriage expansion.

        • That is what I wrote. One of the requirements of Article III standing is being able to personally benefit from a judgment.

        • I think he can duck that, but shouldn’t. The issue is appearances, and integrity. Walker calimed that he and his partner had no interest in marriage, so it wasn’t an issue. But being denied what you think is a right you should have is still galling and offensive, whether you intend to avail yourself of the right or not. If I learned that bald me were being prohibited from adopting children, I’d be especially determined to get that law overturned, because even though I don’t plan on adopting, I resent not having the option.

      • The fact is… as someone in a ten-year relationship, Judge Walker decided a case in which he had a personal interest (the legitimization of his same-sex relationship) and a financial interest (overturning Prop 8 gives him numerous tax breaks).

        Let’s flip the dynamics here:
        Let’s assume that Judge Heber W. Smith, a Mormon bishop (leader of a local congregation) who, in the aftermath of the California Supreme Court’s decision to enact gay marriage, read the 29 June, 2008 letter from the Mormon Church’s First Presidency (text is here: over the pulpit, is assigned the Prop 8 case. He fails to disclose that he is a Mormon bishop, or that he read the letter. After an extensive hearing, he then upholds Prop 8.

        A year later, after he retires, he reveals that he was a Mormon bishop, and that he decided not to disclose that fact prior to hearing the case. The appeals court and the Supreme Court then proceed to effectively uphold the ruling, even after that revelation comes to light. Would the plaintiffs have a right to feel cheated? Why or why not?

        If you’d argue that the plaintiffs in the Prop 8 case have a right to feel cheated, then why shouldn’t those defending Prop 8 feel cheated by Judge Walker?

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