OK, so what have HRC, Georgia Equality, and other gay rights groups achieved by driving King & Spaulding off of defending the Defense of Marriage Act? (Here’s a good roundup.) Well, the same formidable lawyer, former Solicitor General Paul Clement, is still on the case, undeterred. He’ll be at a smaller firm, but he’ll also be a martyr, and he’ll have no trouble getting any resources he needs.
So maybe HRC et al. have succeeded in making the point that being anti-gay in today’s America comes at a cost, so think twice? That may be the lesson our side thinks it’s teaching, but the lesson a lot of lawyers may hear is: Don’t represent unpopular or controversial clients—including, next time around, gay ones. Obviously, the other side can use the same tactics against us; that is why minorities, especially, have a stake in a system where unpopular and controversial people can get top-flight legal representation.
What’s really going on here is not reflective, it’s reflexive. Activists found a weapon and used it and it worked. OK, that’s politics. I get that. Gay rights groups aren’t paid to make life easy for their opponents.
Here’s the thing, though: as gays emerge into effective majority status, the best and maybe only weapon the other side has left is the “homosexual bullies” narrative, in which they’re the oppressed minority, just trying to speak their mind and practice their religion, and we’re riding roughshod over their civil rights by trying to silence and intimidate them. We can’t stop the other side from flogging this narrative, but we can, and should, be cautious about even giving the appearance that the “gay bullies” narrative is true. If we look like we’re clobbering someone, we had better be accomplishing something worth the PR cost.
Just guessing, but I don’t think Paul Clement’s having been pushed to a smaller firm is going to change the Supreme Court’s judgment on DOMA. I don’t think it’s going to deter the other side from going to court. I don’t even think it will deprive the other side of good lawyers. It did show gays have some muscle. It didn’t show we’re smart about using it.