Same-Sex Marriage Lawyers Change Roles


same-sex-marriageNext Tuesday sees a significant Supreme Court case on same-sex marriage, a move that has been portrayed as civil disobedience by government officials but for San Francisco lawyers in the city attorney offices it represents moving outside what they traditionally do:  defend the government’s laws.

Dennis J Herrera, the San Francisco City Attorney, whose office employs five former Supreme Court law clerks, claims to be a defense lawyer there to take the heat for defending laws on the books.  But this time, they’ve stepped outside of that role to challenge the government about a law on the books.  And that’s what’s taking them to the Supreme Court.

The New York Times reports on how the same-sex marriage laws are being challenged by the State of California and others.

San Francisco’s strategy eventually spread to the State of California and the federal government. Instead of defending state and federal laws defining marriage as a union between a man and a woman, President Obama and Gov. Jerry Brown of California urged courts to hold them unconstitutional.

That has complicated the Supreme Court’s job in challenges to Proposition 8, California’s ban on same-sex marriages, and to the federal Defense of Marriage Act. Because the plaintiffs and defendants in both cases agree that the laws under review are unconstitutional, there is a question about whether the justices have anything to decide. Indeed, when the justices in December agreed to hear the two same-sex marriage cases, they went out of their way to ask for briefs on whether the court has the power to decide them in light of the actions of government officials.

John C. Eastman, a law professor at Chapman University in Orange, Calif., and the chairman of the National Association for Marriage, which opposes same-sex marriage, said government officials in the two cases had demonstrated “a cavalier attitude toward their duties to enforce the law.” He was particularly critical of Mr. Herrera’s suit, which followed a brief period in 2004 during which Gavin Newsom, then the mayor of San Francisco and now the state’s lieutenant governor, instructed city officials here to issue marriage licenses to same-sex couples. “It was exhibiting lawlessness,” Professor Eastman said.

Mr. Herrera said it was sometimes necessary for government lawyers to attack the laws they are charged with defending. “When a disfavored minority is being targeted,” he said, “it’s up to a public law office to stop it.”

San Francisco’s role in the Proposition 8 case, Hollingsworth v. Perry, No. 12-144, has been overshadowed by that of Theodore B. Olson and David Boies, the prominent lawyers who in 2009 filed the suit challenging the initiative. The city promptly intervened, and the two teams of lawyers worked closely together at the trial.

Mr. Olson, a former United States solicitor general who has argued some 60 cases in the Supreme Court, said the quality of the work from Mr. Herrera’s office was exceptional.

“Their briefs have been superb,” Mr. Olson said.

That is probably partly a testament to the credentials of the team Mr. Herrera assembled. Even in a difficult job market for lawyers, Supreme Court clerks command enormous payments for just joining private firms.

“Bonuses my year were $225,000,” recalled Christine Van Aken, who in 2004 and 2005 clerked for Justice David H. Souter. (Signing bonuses are now in the neighborhood of $280,000.)

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