Powerhouse law firms have declined to argue in favor of same-sex marriage bans
Tim Holbrook: Some pundits say these firms have been "bullied into silence;" this is a strange accusation
Editor’s Note: Tim Holbrook is professor of law at Emory University School of Law. He is a frequent LGBT commentator and has served as co-counsel for NFL players at the Supreme Court advocating for marriage equality. The opinions expressed in this commentary are solely those of the author.
The Supreme Court is set to hear arguments on April 28 in cases that could legalize same-sex marriage across the country.
Conspicuously, traditional powerhouse law firms have declined to argue in favor of same-sex marriage bans but have argued in favor of marriage equality. This dynamic is somewhat surprising, particularly given the high profile of these cases. Lawyers often take on unpopular causes, even those with which they may disagree, because they support the rule of law and believe justice is not a popularity contest. Attorneys do not have to take every client that comes through their door, but there is a strong tradition of lawyers taking on controversial issues, reaching as far back as John Adams representing the British after the Boston Massacre.
Bullying is a powerful term that bears further exploration. Who really has been bullied? Indeed, it is a curious accusation.
The lesbian, gay, bisexual, and transgender community has long had various epithets hurled against its members. There are the well-known “f” and “d” words thrown at those perceived as gay or lesbian, respectively. And, of course, the line “that’s so gay,” which is meant to denigrate something or someone.
But language is just the tip of the iceberg.
Last summer, the Texas Republican Party’s platform endorsed “gay conversion therapy,” a procedure viewed as harmful and useless by psychology experts. In the last six months, a pastor in Arizona published videos suggesting the way to deal with AIDS/HIV under the Bible is to kill gays and lesbians. A lawyer in California even offered a proposal that would legalize the killing of LGBT people. Specifically, it notes that because same-sex relationships are “a monstrous evil that Almighty God … commands us to suppress,” then anyone engaging in same-sex conduct shall “be put to death by bullets to the head or by any other convenient method.”
Let’s not pretend that this rhetoric is harmless. Statistics show that LGBT people commit suicide at high rates. Transgender people are frequently victims of violence.
Fortunately, for the most part, public reaction has been to swiftly condemn these comments. Nevertheless, rhetoric like this shows that LGBT opposition has not been silenced. This rhetoric itself is meant to silence. It is bullying.
I am a Christian and have yet to encounter hostility when I publicly declare my faith. That contrasts with a 30-minute tirade I received on an airport shuttle, where my marriage to my husband was compared to animals and otherwise attacked.
Did I acquiesce in silence? Has this bullying silenced the LGBT community? Of course not. The response to bullying is to speak up, not to go quiet.
If those opposed to same-sex marriage feel silenced, then that’s on them. They should ask themselves why they feel silenced. If the silence is because of threats, then that is wrong. But, even then, the reaction is to speak up, as the LGBT community has done.
If, however, the silence is because the arguments against same-sex marriage have been vetted, but rejected, in the public square, then that’s not bullying. Instead it reflects the fact that the nonreligious arguments against marriage equality have failed.
The leading medical associations recognize that LGBT people are as healthy as straight people. Children of same-sex couples develop as well as those in straight families, except for the marginalization they feel because their families are currently treated unequally under the laws of many states.
Federal Judge Richard Posner summarized the arguments against marriage equality as follows: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
The arguments against same-sex marriage ultimately reduce to moral and religiously based objections to homosexuality. The vocal support for LGBT rights is not an effort to silence opposition through bullying. Instead it is a recognition that such morality-based critiques should not be the basis for public policy. Indeed, such advocacy on behalf of certain Christian traditions risks impeding the religious freedoms of other Christian denominations and religions that are inclusive of LGBT people and same-sex marriage.
The suggestion that opposition to same-sex marriage has been silenced due to bullying rings untrue. Instead, the opposition wants to speak without having to encounter a response. That isn’t free speech. Free speech is not speech without consequence or response. Free speech does not provide a platform from which others must only listen.
The arguments against LGBT inclusion have been heard. Increasingly, they are being rejected through considered debate. That is not silencing, and it certainly is not bullying.