How the Top Law Firms Adopted Gay Rights as a Cause

There was a time when the nation's major big-city law firms weren't exactly homophobic -- they wouldn't get close enough to the subject of homosexuality even to disparage it. As for gay attorneys; there weren't any, at least officially. As for gay-rights lawsuits, they wouldn't have touched them with a 10-foot Harvard crew oar.

If gay attorneys were helping the community, they did so from deep within their firms' closets. Now, not only are the nation's top law firms representing us, they're doing it pro bono, which is Latin for "on their own dime."

That's right: Those fabled "white shoe" law firms, the ones with armies of attorneys. The firms don't charge such clients a cent. They normally charge clients hundreds of dollars an hour.

We've come a long way from the dark days depicted in the film "Philadelphia," when attorney Tom Hanks was shunned for the double sin of being outed and having AIDS.

The term "white shoe" derives from the time when only upper crust WASPs staffed the leading East Coast law firms. They wore white bucks -- suede shoes with pink rubber soles still the favored footwear of preppies everywhere.

Today, diversity is a hallmark of such firms. These firms employ attorneys and support staff of every ethnic and racial variety as well as sexual orientation and gender identity. In fact, they seek them out in an upper-crust form of affirmative action.

Taking on Serious, Vital Cases

Hayley Gorenberg, deputy legal director at Lambda Legal, the nation's largest advocacy organization litigating LGBT rights, described how it used to be before a sea change in attitudes within the big firms.

"I have spoken to attorneys who did pro bono work for Lambda decades ago," Gorenberg said in an interview. "They told me that they did it on their own time hiding in the library on a Saturday morning because they felt they would not be accepted. It's not that way any more."

With about 20 attorneys in five locations, from New York to Los Angeles, her organization might be considered a mini-white-shoe firm if it were a for-profit enterprise.

Gorenberg cited two reasons why major firms underwent an attitude adjustment.

"One is the growing realization that gay rights cases are the cutting edge of a major equal rights movement in the country right now," she observed. "There was a dawning understanding that this was serious work with life-changing consequences."

Gorenberg described what she called the "dictionary syndrome" that was common before the sea change: "In gay rights cases, we were getting decisions where a judge opened a dictionary and was, for example, defining marriage as between a man and a woman. Case closed. Then we started gaining traction with real legal analysis that had bite and was acknowledged by the courts."

The other reason for the attitude change was that lawyers at the big firms began coming out of the closet. "The visibility of LGBT attorneys and straight ally attorneys has brought significant resources to Lambda Legal and sister organizations," Gorenberg noted. "When people can be out and honest about who they are, they are comfortable telling their firms, 'pro bono work is a way we should give,' and they are being taken seriously."

Legal Eagles Who Love a Challenge

Vickie Henry, senior staff attorney at Gay & Lesbian Advocates & Defenders in Boston, echoed Gorenberg's analysis. She described what sparked the sea change at GLAD: its lawsuit that ultimately made marriage equality legal in Massachusetts in 2004.

"In the early years, GLAD had cooperating counsel that were usually solo practitioners," Henry explained in an interview. "By the time the Goodridge case got to the Massachusetts Supreme Judicial Court, nine out of 10 of the largest law firms in the state had signed and submitted amicus briefs. The tenth was working on a legislative change."

EDGE interviewed attorneys at white-shoe firms by e-mail or phone to find out when and why they began working for the LGBT community and how they are personally involved.

Skadden Arps is one of the largest and most prestigious law firms in the world. Forbes magazine calls it "Wall Street's most powerful law firm." With more than 1,800 attorneys, it has 23 offices across the globe, from New York to Beijing, Paris, Moscow and Vienna.

Skadden has been litigating gay rights cases since at least 1990, according to Cliff Sloan, a partner based at its Washington, D.C., office. He was among the firm's attorneys who filed an amicus brief regarding sexual orientation for Lambda Legal and GLAD with the U.S. Supreme Court in "Christian Legal Society v. Martinez."

In a 2010 decision, the court upheld, against a First Amendment challenge, a policy recognizing student groups at the University of California's Hastings College of Law.

"We were very gratified that Justice Ginsburg's majority opinion cited our brief and our reasoning," Sloan said.

"I believe that the issue of gay rights presents one of the most compelling human rights and civil rights issues of our time," he said when asked why he has an interest in such work. "It is especially important to try to contribute at a time when many fundamental issues are being considered and decided."

Jenner & Block has about 450 attorneys in offices in New York, Chicago, Los Angeles and Washington, D.C. Paul Smith, a partner in its Washington office, worked on behalf of Lambda Legal on the Supreme Court's landmark "Lawrence v. Texas" decision that struck down the sodomy law in Texas in 2003. Smith argued the case before the court.

"As a gay man with an interest in constitutional law," that case and others Jenner & Block is involved with are a natural fit, he said. Among the cases Smith and his colleagues are working on now is the section of the Defense of Marriage Act that prevents the federal government from recognizing the validity of same-sex marriages."

Jenner & Block worked with GLAD on that for a number of years, including acting as its co-counsel in the Gill case in Massachusetts and the Pedersen case in Connecticut currently challenging that section of DOMA. In Adar v. Smith, the firm was co-counsel with Lambda Legal on a writ of certiorari petition asking the Supreme Court to review Louisiana's refusal to issue an accurate birth certificate to a gay couple for their son, whom they adopted in New York.

Darlene Smith, the Louisiana state registrar, refused to recognize the adoption and issue a birth certificate listing both fathers as the boy's parents. Lambda and Jenner & Block contended that the registrar violated the Full Faith and Credit and Equal Protection clauses of the Constitution. The Supreme Court denied the petition Oct. 11, which was, coincidentally, National Coming Out Day.

Helping Redefine Gender Identity
Jenner & Block also worked with the American Civil Liberties Union on a case that successfully challenged Illinois' refusal to issue amended birth certificates showing the correct gender of trans individuals.

Proskauer Rose is one of the oldest and most prestigious white-shoe firms. Founded in 1875, it's headquartered in New York and has 12 offices, including ones in Paris, London and Hong Kong. Its client list reads like the top 100 of the Fortune 500 list.

Prokauer and People for the American Way Foundation are co-counsels in a lawsuit brought by Deirdre DiBiaggio and Katie Carmichael, a lesbian couple, against Rose Marie Belforti, the town clerk in Ledyard, a small community in New York's Finger Lakes region.

Belforti refuses to issue same-sex marriage licenses, even though such marriages have been legal in the state since late July. A devout Christian, she believes God has condemned homosexuality as a sin.

"This case is so outrageous," said Debbie Liu, People for the American Way's general counsel. "Because the town clerk was so public in saying that these people are morally wrong. It is not her position to do this. She is charged with treating all people equally under the law."

The foundation has represented LGBTs for at least 20 years. "It's part of our equality work," Liu explained. "We get involved in cases to defend their rights, especially those that have a potential for a national impact."

Diverse from the Beginning
Boston-based Foley Hoag, which also has offices in Washington, D.C. and Paris, is a relative newcomer as a white-shoe firm. It's unusual in that, ever since its founding in 1943, it was diverse from the outset.

"Originally, it was named Foley, Hoag & Eliot," said partner Claire Laporte, who coordinates the firm's pro bono program. "Foley was Irish Catholic, Hoag a Quaker, and Eliot a more traditional white-shoe lawyer, an Episcopalian. A fourth attorney, hired after a couple of years, was Lewis Weinstein," who was Jewish.

Foley Hoag has been handling gay rights cases since the 1990s. "We had lawyers who had significant connections to some of the advocacy organizations, such as GLAD," said Laporte. "That's how we became involved."

Foley Hoag is co-counsel for the plaintiffs in the Gill case, wrote amicus briefs supporting plaintiffs in the Goodridge case and has
handled litigation involving transgender prisoners seeking medical treatment, such as hormone therapy.

"I think one of the great opportunities we have as lawyers is to try helping people who are being unfairly treated or at least I in particular am interested in this," Laporte said about why she works on LGBT rights issues.

"One's sexual orientation or identity is part of them and personal," she continued. "It shouldn't affect their ability to do a job or anything else."

Until recently it was a prejudice that people felt was free to express, Laporte added. "Addressing ugliness, I think, is a good place for firms to use their resources to change the way things are."

She related a conversation with her mother while they were in a car traveling through New York on a family visit. "She said, 'You know something really should be done with the fact that the federal government is not willing to recognize gay and lesbian relationships.' That spontaneously coming out of my 74-year-old mother was indicative of the changing mood of the country."

Everyone loves to hate lawyers, especially the best-paid corporate big guns in New York, Boston and Washington. But it's their high-quality education and high-priced expertise that has gotten us many of the rights we enjoy today.