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April 25, 2011


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Jonathan H. Adler

If by "merits" you mean a belief in abstract principles like "the government should be forced to prove its case beyond a reasonable doubt" or "the First Amendment protects the expression of offensive and evil ideas" and "the constitutionality of a federal law should be defended in court," then I would agree. If you mean anything beyond that, I am not so sure.



It is a difficult problem in the sense that I think descriptively you are right (even going to a level of specificity beyond JHA's principles like defending the rule of law), but it is a descriptive reality that can be harmful if carelessly applied in every context. It is probably fair to say that most lawyers who would be willing to defend the DOMA are probably not strongly pro-gay marriage. They might not be anti-gay-marriage, but as a generalization it is probably fair to infer that most lawyers defending DOMA would be on the right side of the spectrum; just as it would be an accurate inference to say that most lawyers defending the Gitmo detainees are on the left side of the political spectrum.

The problem is that applying the generalization has three pernicious effects with a vicious cycle. The first is that it conflicts with the ideal, John Adams and the British soldiers and all. The second is that widespread use of the generalization then actively undermines the ideal, so that a lawyer who actually tries to live to the ideal will be unfairly vilified and thereby deterred, meaning that the ideal becomes descriptively less and less accurate. The third is that when the generalization becomes completely accurate due to the vicious cycle in (2), applying it leads to increased polarization. So eventually we'll have identifiably Republican lawyers who defend DOMA and similar causes and and denounce Democratic lawyers representing Gitmo detainees as traitors; while Democratic lawyers will represent Gitmo detainees and similar causes and call the Republican lawyers bigots. That would not be a good ending place for the legal profession.

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