Culhane: Same sex marriage round-up

Let’s do a round-up of a few major legal and political developments relating to the marriage equality movement. I’ll leave it to you to connect the dots.

King and Spalding and DOMA

I’m a bit late to weigh in on this, but it’s taken me awhile to sort through my feelings on the decision of King and Spalding to withdraw from their representation of the House in defending the vile Defense of Marriage Act. In sum, I agree with this writer that the firm made what’s essentially a business decision – probably a good one, given the reported threat by another principal client, Coca Cola.

The argument that “gay bullies” brought about this change – made most notably by Andrew Sullivan, but by many others, too – is naïve as to how law firms actually work. During my short (but too long!) stint at one of the major firms in N.Y. a long time ago, it became abundantly clear that I was in a business; one bound by certain professional rules and unique obligations, yes, but a business nonetheless.

This isn’t to say that many of my colleagues didn’t feel called to go beyond the profit motive – they did, and we did much valuable pro bono work. But the partners cared, as they should, mostly about the bottom line.

Yes, King and Spalding should have thought of this sooner; their decision to withdraw complicates the issue.

But the plain fact is that, in 2011, the firm’s bottom line would likely be harmed by arguing the pro-DOMA side. In addition to Coke’s alleged pressure, the firm feared the impact to recruiting and to its overall image. That’s just a sign of the times.

To call it bullying is to palter with words.

Moreover, this is really nothing like representing Guantanamo prisoners, who have a constitutional right to a legal defense.

In fact, the great weakness of the analogy to the rightly condemned outrage directed at the attorneys who defended the detainees is that it’s hard even to identify a “victim” of King and Spalding’s actions here. The best opponents can do is point to speculative future harm if marriage is extended to include same-sex couples.

And, as Paul Clement’s (entirely appropriate) decision to leave the firm and undertake representation of the DOMA defenders shows, the U.S. House of Representatives hardly has to worry that no one will take up their cause. Once we move beyond the easy outrage of analogy to facts, the cases couldn’t be more different.

And Sullivan need not worry: DOMA will receive a robust defense, as it should — and as was never really in doubt, again in contrast to the Guantanamo case.

Civil unions everywhere

Should we be cheered, despondent, or somewhere in the middle about the recent flurry of civil union laws?

Already this year, Hawaii and Illinois have put such laws into place, and the Governor of Delaware (where I teach) is to sign a civil unions bill next week.

The arguments for them are clear. First, it’s much easier to get them passed than it is marriage equality measures, especially in states that have laws banning same-sex marriage that would need to be repealed (or, worse, constitutional amendments).

Second, civil unions have been shown to lead to full marriage equality, once legislatures or courts come to realize that the civil union is a poor substitute for the real thing.

Yet I’m starting to worry that these second-class unions are becoming the easy default. Consider Rhode Island, where marriage equality supporters in the state legislature determined that they didn’t have the votes, in part because of determined push-back from groups like the more-effective-than-we-want-to-admit National Organization for Marriage.

Our side could have pushed back, either this year or next. Instead, the plan is now to introduce civil union legislation. If this initiative results in a civil union law this year, our 2011 tally might be: four civil union bills; no marriage equality laws.

Is this progress?

In a sense, yes. Civil unions surely help couples in need of protection.

But there’s something else I like about them: They force the oppositionists into uncomfortable positions.

I’ve already detailed the Maggie Gallagher civil union tilt-a-whirl (and I’m still not clear on exactly what she’d support), and now there’s more evidence. In a recent editorial in the Rhode Island Catholic, the diocese takes up a position in opposition to civil unions, calling them a precursor to marriage.

One might expect more principle and less politics from those mounting an ecclesiastical argument, but what’s glaring is the lack of charity or compassion from these Catholics. The editorial concludes that “[c]ivil unions are not the answer.”

Well, what is? The editors offer no suggestions for remedying the present inequities. That clanging silence will be less and less appealing to the broad middle that sees same-sex couples as needing and deserving a spectrum of legal protections, regardless of whether they’re yet ready to embrace full marriage equality.

Incidentally, many Catholics are among this group.

Will New York be the next state to get marriage?

“It’s up to you, New York[!] New York!” Governor Andrew Cuomo clearly sees marriage equality as an important part of the legacy he wants to establish, one that draws on the reasonableness of the state’s residents (who overwhelmingly support marriage equality) and builds on his father’s reputation for socially progressive change.

Civil unions really aren’t an option there, because same-sex couples can already have their out-of-state marriages recognized in New York.

So it’s marriage or nothing. I expect it will be marriage.

If not this year, then next. It’s worth making a huge effort there.