Thursday, April 28, 2011

Crossing The Line Revisited

I should be the last person to chastise any lawyer for representing an unpopular cause or client.  In a piece I wrote back in November, Crossing The Line, I explained that after defending death row inmates for over 20 years, I am particularly sensitive to being criticized for representing a despised group of individuals.  At that time, it was the ACLU and CCR (Center for Constitutional Rights) who were being skewered for representing the interests of Anwar al-Awlaki, an American-born cleric tied to Al Qaeda, who was allegedly hiding in Yemen and whose killing had been authorized by the Obama Administration.  I strongly disputed Andrew Sullivan's comment that defending what he called an active terrorist "crossed the line," and stated my passionate belief that a lawyer's most important role is to represent people who are hated and feared, and to ensure that the government is following the law. 

But I do think there is a difference between standing up for reviled causes and clients -- which is not only honorable but necessary for our adversary system of justice to work -- and representing those with political power who seek to use laws to discriminate against others.  I am, therefore, not offended that the prestigious law firm of King & Spaulding felt pressure to bow out of representing the Republican-led House of Representatives in defending the Defense Of Marriage Act, the 1996 law which prohibits the federal government from recognizing same-sex marriages.

What I do find offensive is the litigation strategy of the supporters of Proposition 8, who filed a motion to vacate Judge Vaughn Walker's ruling striking down California's voter-approved ban on gay marriage.  Walker, appointed to the federal bench by President George H.W. Bush and recently retired, confirmed this month what was an open secret, that he is in a long-term relationship with a man.  This led Charles Cooper, the conservative attorney representing Protect Marriage, the group defending Prop 8, to seek to toss out Walker's ruling on the ground that he is gay and should have disqualified himself from the case.

As Adam Serwer points out, this argument "relies on the same faulty argument put forth originally in defense of Prop 8:  The qualitative judgment that same-sex relationships are inferior."  Obviously, if a judge in a same-sex relationship cannot be expected to be impartial on whether same-sex marriages are damaging to the institution of marriage, wouldn't the same logic disqualify a straight, married judge?  Serwer explains that "Proposition 8 supporters would never make that argument, of course, because the implication of their argument is that gays and lesbians are incapable of the impartiality expected of judges by their very nature."

David Dayen is exactly right when he says that "this ugly tactic plays to the basest instincts of the human condition, positing LGBT judges as somehow not as committed to fairness in a court of law as their heterosexual counterparts."  Indeed, as the Los Angeles Times editorial states:  "The group's assertion that a gay judge in a relationship is less able than a heterosexual married judge to render a fair decision on a sexual-orientation case says more about the pervasiveness of discrimination against homosexuals than it does about Walker's fitness to hear the matter."

Lawyers should be given exceedingly wide latitude with regard to whom they represent and the methods they employ in the course of their representation.  But I suppose there is such a thing as crossing the line after all.


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