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Why some lawyers call gay marriage unprecedented third rail of justice system

Pete Prete of Equality Beyond Gender holds a
Pete Prete of Equality Beyond Gender holds a "marriage pride flag" outside the U.S. Supreme Court January 9, 2015 in Washington, DC. The justices of the Supreme Court were scheduled to meet to determine whether the court will take up any of the five pending state-banned same-sex marriage cases in Ohio, Tennessee, Michigan, Kentucky and Louisiana.
Alex Wong/Getty Images

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The Supreme Court is preparing to hear arguments on both sides of the same-sex marriage debate next week, but we won’t be seeing any major law firms stepping up to defend traditional marriage.

In a recent article, New York Times Supreme Court correspondent Adam Liptak explains how, unlike in the past where large law firms have jumped at the chance to represent factories accused of heavy pollution or tobacco companies who allegedly lied about how dangerous their products are, no leading firm seems to want anything to do with arguing against same-sex marriage. The speculation is that these large law firms feel they might lose clients or the ability to attract new talent if they are known as a firm that fought against same-sex marriage. Liptak also argues there’s a strong feeling that opposing same-sex marriage in today’s world is almost the same kind of bigotry as racism.

Is same-sex marriage becoming the third rail of the American justice system? Should large law firms be more open to the idea of representing the unpopular side in a landmark case like this?


Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at the New York University School of Law. He’s also the author of “SPEAK NOW: Marriage Equality on Trial” (Crown Publishing, April 2015), which came out Tuesday.

John Eastman, Professor of Law and Founding Director of the Center for Constitutional Jurisprudence at Chapman University School of Law.