There is something about same sex marriage that has lawyers not thinking straight (no pun intended). We have seen two bad episodes this week:
First there was a pathetic motion to vacate Judge Walker’s order in the Proposition 8 case because he is gay and lives in a stable relationship with another man (as opposed to being celibate or a playboy). One supporter of the motion summed up its message with the words “If the Judge Ain’t Straight: You Must Vacate”:
http://www.catholic.org/national/national_story.php?id=41065
This, however, is not the law (the web site is not an official site for the Church whose name it uses). FRCP Rule 11 is the law, and was made for this kind of thing.
Second, King & Spalding first agreed to represent a committee of the United States House of Representatives in defending the Defense of Marriage Act (DOMA) against lawsuits claiming it is unconstitutional, and then King & Spalding suddenly dropped the client, under pressure from interest groups on the other side of the DOMA debate and perhaps pressure from another client. Many commentators, including the Attorney General, have made clear their disapproval of these pressure tactics:
What is most embarrassing is that King & Spalding caved in to them.
In sum, it’s been a very bad week for lawyers on both sides of the same sex marriage debate (the good lawyers including Ted Olson and Paul Clement on the other hand are doing a superb job). Professional responsibility professors drafting exams should think of spreading out the curve with a question about a same sex marriage case, with egregious conduct on both sides. Unless the students are better than the real lawyers involved in these cases, at least half the class will get half the questions wrong.