This column by ACRU Policy Board Member and former Justice Department attorney J. Christian Adams was published November 5, 2014 on PJ Media.
Amongst the least recognized foes of constitutional conservatism are lawyers at giant law firms. Big Law lawyers have served as mercenaries for a wide spectrum of fringe causes. Unlike mercenaries, however, they are doing the left’s bidding for free. In Houston, they’re doing it to attack Christian pastors who speak on theological matters.
But it isn’t just attacks on Christians. These “pro bono” efforts by lawyers at large law firms have undermined America’s energy independence, the integrity of our elections, and the security of the nation.
And paying clients of the firms are unwittingly funding this political agenda.
Houston Mayor Annise D. Parker used pro bono lawyers from big law firms to attack religious freedom by issuing subpoenas to them. One of the attorneys who issued the subpoenas is Kristen Schlemmer at Susman Godfrey, LLP. Her firm page is here.
Mayor Parker had been unapologetic about attempting to bully and intimidate local pastors by subpoenaing their sermons and communications with their church members. She finally has backed down after vigorous criticism, which included a call-to-arms from former Arkansas Governor Mike Huckabee. Houston has withdrawn its subpoenas after it was “deluged with telephone calls, letters, emails” and hundreds of Bibles and sermons according to Fox News. Texas Attorney General (and now governor-elect) Greg Abbott also criticized the city, calling the subpoenas a “direct assault on the religious liberty guaranteed by the First Amendment.”
Parker, the city’s first openly lesbian mayor, has displayed both an astonishing ignorance of and an astounding contempt for the First Amendment in her quest.
But just as bad is the help she has received from three Houston law firms — Susman Godfrey, Fulbright & Jaworski, and Haynes & Boone — in attempting to subvert the most fundamental principles of religious freedom protected by the Bill of Rights.
This controversy arose after the city government passed an “Equal Rights Ordinance,” which among its effects would allow men who identify as women to use a women’s bathroom and vice versa. Denial of actual gender strikes at the heart of Judeo-Christian theology of God’s will. Thus, critics gathered more than 50,000 signatures to put the “bathroom ordinance” on the ballot so the residents of Houston could vote on it. A lawsuit was filed after Parker and her lawyers threw out the petitions claiming there were too many invalid signatures.
The only relevant issue in this type of election lawsuit is the validity of the signatures of the Houston residents who signed the petitions, and what standards the city used to determine their validity. Yet the mayor subpoenaed the sermons and communications of local pastors who weren’t even parties to the lawsuit, seeking anything that discussed the ordinance, the petition, and everything from “restroom access” to “the topics of equal rights, civil rights, homosexuality, or gender identity.”
As Peter Kirsanow, a commissioner on the U.S. Civil Rights Commission, said in a letter to Mayor Parker, “the pastors’ understanding of the ordinance and the petition is irrelevant to the litigation.” Their religious views on civil rights, equal rights, homosexuality, and gender identity also “have nothing to do with whether there are enough valid signatures to place a referendum on the ballot.” According to Kirsanow, these subpoenas were a “blatant attempt to punish these pastors for expressing their religiously-based political views.” It was an “abuse of government power” and Kirsanow found it troubling that “given the number of lawyers involved, someone did not raise the First Amendment implications.”
This raises a serious and embarrassing issue about Mayor Parker’s legal allies. Here we have three prominent law firms — Susman Godfrey, Fulbright & Jaworski, and Haynes & Boone — providing their legal advice and assistance to help Mayor Parker and her administration violate the First Amendment rights of local pastors.
Susman Godfrey, which is listed as the “Lead Counsel for City of Houston” on the subpoenas, provided its services to Houston on a pro bono basis. In other words, this law firm provided free legal services to the city of Houston — which has a budget of $4.5 billion and an in-house legal staff of over 100 attorneys according to the city’s website — in order to bully and intimidate those who supported a referendum, a basic act of political expression. Haynes & Boone confirmed that they are working pro bono for Houston. Sources indicate that Fulbright is also working pro bono, but they refused to respond to a request for verification by a colleague.
Many law firms provide free legal services to clients who cannot afford representation. Such pro bono work is usually to be commended as a service to the public, and lawyers who do such work don’t necessarily adopt the views or tactics of their clients.
But these firms did not offer to help the clients in this case who cannot afford representation: the pastors who don’t have a fraction of the resources of the city.
Instead, these lawyers masterminded chilling discovery on a pro bono basis for a very wealthy client, but a client who shares their worldview.
Houston isn’t the only place where “lawfare” by Big Law is advancing a left wing agenda. Robert Driscoll, a former official at the Department of Justice under President Bush and now in private practice, wrote this letter on my behalf scolding a lawyer at a big law firm for his style of representation of Shirley Sherrod in a defamation action against Andrew Breitbart. Driscoll sums up the machine nicely:
Having worked at large law firms for the better part of 20 years during my career, I can only presume that your decision to write (on impressive Kirkland & Ellis stationery, no less, rather than an email) instead of calling, signals that you intend your letter to serve as “Exhibit A” to some discovery motion currently being crafted deep within the bowels of Kirkland & Ellis by associates eager to escape yet another soul-deadening document review for a brief, pro bono, taste of the adversarial process.
It’s easy to dismiss the rise of pro bono lawfare of lawyers just being lawyers. But that conclusion overlooks the tremendous damage that ideologically driven pro bono representation has done to the country, and our Constitution.
Lawyers at large firms have told me that the pro bono representation decisions inside their large firms are driven by ideology — and almost exclusively aid the left. Some firms have even jettisoned paying clients hated by the left so that the firm can take on their pro bono cause.
Conservatives have been largely afraid to confront the ideological orthodoxy of Big Law’s pro bono crusade. That’s too bad, because these lawyers inside large firms have shared the difficulties of going at it alone in trying to bring balance to the pro bono agenda inside Big Law. A little bit of criticism from the outside, they tell me, could go a long way toward helping them on the inside.
Americans ought to be unsettled at the city of Houston’s manipulation of our legal system to intimidate political opposition and restrict religious freedom. And the law firms involved in helping Houston engage in this malicious assault on the First Amendment and religious freedom should be embarrassed by the actions of their lawyers.