The Smithsonian Institute has a feature discussing Brown v. Board of Education titled “The Defenders of Segregation.” It profiles the legal team that argued on behalf of the states in the companion cases to Brown. Most prominent among the lawyers is John W. Davis, who argued 140 cases before the Supreme Court, including 73 as Solicitor General. Needless to say, Davis, and the other lawyers on this list are not remembered fondly by the Smithsonian Institute.

With 60 years of hindsight, how should we view these advocates? Let’s put aside for the moment that most (but not all)  of them were in their personal capacities advocates for segregation. How do we view lawyers who voluntarily took the cases to defend what is now reviled as an odious stain in our constitutional history? In our country, we have a long, long tradition of lawyers representing very unpopular causes. The most-cited example is, of course, John Adams who defended the Red Coats who opened fire at the Boston Massacre.

When many lawyers who defended accused terrorists at Guantanamo were castigated for their representation, they promptly trotted out John Adams. They said that even if these people actively worked to harm Americans (let’s focus on the ones who actually engaged in terroristic acts, and not the ones who were detained indefinitely without evidence), they deserved a good defense because our Constitution requires it. I agree with these statements emphatically. All  clients, no matter how loathsome, deserve zealous representation. Our Constitution demands no less. Murderers, rapists, serial killers, terrorists, Klansmen alike. They should all be ably represented, no matter how many lives they ruined.

And what do we make of the lawyers as people? Do we criticize the lawyer as a sympathizer of terrible people, or someone who wants bad things to happen to America? Of course not. We separate the lawyer from the case–even though this is something of a fiction, as the most successful detainee lawyers spent years of their lives, invested in the case as personal advocates. They became a part of the case.

Which brings me back to the question I posed earlier. What happens when a lawyer is defending not a person, but a law. And that law requires treating some people different than others. First, does that law deserve a zealous defense? I think most people would still agree that the answer is yes. Second, should the lawyer be castigated for taking the case? It is here that I think the issues fork. In case you couldn’t tell, I was talking about Utah’s eventual appeal to the Supreme Court concerning the constitutionality of its same-sex marriage ban. As an aside, Judge Shelby ruling first made Utah the case everyone will remember. Oklahoma, (soon) Ohio, and others will join the lot. But Utah will be the main event.

Recall that in 2011, Paul Clement publicly departed from King & Spalding after he agreed to represent the House Republicans in the defense of the Defense of Marriage Act. BLT reported that “Pressure from within King & Spalding — as well as from some of its clients — were said to be factors in Clement’s exit.”

Earlier to this week, I saw a post that Gene Schaerr, the head of Winston & Strawn’s appellate practice would represent Utah in it’s eventual appeal to the Supreme Court, defending it’s ban on same-sex marriage. I commented to a friend, “Remember when Clement left King & Spaulding over DOMA. This may be similar.” One minute later I saw Chris Geidner’s report at Buzzfeed that Schaerr was leaving King & Spalding. Tony Mauro reported:

“Gene Schaerr, our former partner and formerly one of the co-leaders of our appellate and critical motions practice, has decided to resign from the firm in order to take a position as Special Assistant Attorney General for the State of Utah in order to lead the State’s appellate efforts in the Kitchen, et al. v. Herbert et. al case. Linda Coberly will continue to lead the firm’s appellate practice and will facilitate a seamless transition for our clients. The firm wishes Gene all the best.”

Schaerr resigning before he took the case is a signal that he told the firm about the case, and the firm told him that he could not stay. Mind you he was the head of their frickin SCOTUS practice (as was Paul Clement). This is not like asking an associate to take a hike. It is possible, of course, he decided he would need to dedicate 100% of his time to the case, and could not handle other matters. But I find this really unlikely, as the case is quite far removed from One First Street. Or, maybe he wanted to leave Big Law and this was his out?

Geidner suggested that his departure was due to the controversial nature of the case. Ian Millhiser is more blunt with the click-bait headline: “Are Anti-Gay Clients Now Too Toxic For Big Law Firms To Take Them?”

Beyond the risk that a major client may balk at the firm’s activities, there’s another obvious reason why large law firms may not want to take on major anti-gay cases. Firms compete for top graduates and recent law clerks in their hiring process, and most new lawyers come from an age group that overwhelmingly supports marriage equality. Eighty-one percent of people aged 18-29 support marriage equality, according to a Washington Post/ABC News poll. Given that the kind of work (and the kind of jobs) offered by one major law firm can typically be done just as well by dozens of of other large law firms, the fact that a firm is also engaged in anti-gay defense work can easily be enough to push clients and potential hires into another firm’s arms.

The ABA Journal adds:

And in 2011 Foley & Lardner saw its “corporate equality” score drop in a rating by the Human Rights Campaign because it represented a client opposing gay marriage. The firm received a perfect score a year later after asserting it would no longer represent gay-marriage opponents.

Is it the case that firms that defend bans on same-sex marriage are toxic? Let me make an aside point. Of late, I have been growing increasingly apprehensive about the level of acrimony directed towards lawyers who defend same-sex marriage bans. Regardless of what you think about the merits (remove yourself from the legal bubble for a moment), in nearly every state, the majority of people oppose gay marriage. Structuring the debate to scorn the hundreds of millions of Americans who take this position may be priming a serious backlash. This is the fear that Justice Ginsburg has warned about. Moving too far, too fast, can backfire. And I write this as someone who firmly believes in marriage equality. While this path may bring marriage equality quickly, it could seed long-standing resentment against true equality embraced by all. For some other examples, see the Roe backlash, which animates much of Justice Ginsburg’s concerns. Three decades later, the fight over abortions in America is fiercer than ever.

Back to the story at hand. The Desert News also has an explanation of how and why Schaerr was selected:

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said.

Also Thursday, the Utah State Tax Commission decided that married same-sex couples in Utah may file joint state income tax returns — a change from an earlier state position that would not have allowed them to file as married.

Schaerr’s hiring ended Reyes’ two-week search for outside counsel, which included an extra week due to a lack of responses. A dozen applicants ultimately vied for the job.

“Lack of responses.” Can you imagine? Usually Supreme Court advocates fall over themselves to fight for high-profile constitutional law cases. But not this one (as I noted in an earlier post).

So what awaits Schaerr afterwards, as Winston will not take him back? Apparently a fellowship at the Sutherland Institute, a conservative think tank in Salt Lake City.

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said.

Also Thursday, the Utah State Tax Commission decided that married same-sex couples in Utah may file joint state income tax returns — a change from an earlier state position that would not have allowed them to file as married.

Schaerr’s hiring ended Reyes’ two-week search for outside counsel, which included an extra week due to a lack of responses. A dozen applicants ultimately vied for the job.

What will the Smithsonian Institute write about him, if anything, when archiving the case of  Kitchen v. Herbert?