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Law Firm’s Own Practices Don’t Align With Its DOMA Argument

Bingham McCutchen is arguing for clients in the Supreme Court that the Defense of Marriage Act is bad for business, while it plans to move its own operations to a state that offers few rights to the LGBT community.

The law firm Bingham McCutchen last week filed an amicus brief with the Supreme Court on behalf of dozens of clients, arguing that outlawing same-sex marriage is bad for business. But Bingham’s own business practices don’t necessarily reflect this view.

As the high court prepares to hear cases seeking to overturn the Defense of Marriage Act, which defines marriage as being between a man and a woman, various stakeholders have lined up to file such briefs advocating that the justices overturn the law.

In Bingham’s brief, filed by partner P. Sabin Willett, the firm argues for 278 different business clients that barring same-sex couples from marrying makes it difficult for an employer to administer benefits and dampens workplace morale.

“We want to show the perspective that DOMA is bad for business,” Willett told the New York Times. Among the problems created by DOMA, say lawyers involved in the issue, is a difficulty moving employees to locations where gay marriage is prohibited.

But Bingham McCutchen is doing exactly that to its own staff. The firm is opening a new “global services center” in Lexington, Kentucky, this spring, which will house its US administrative operations—and involve some 250 employees. Bingham committed $22.5 million to the project, and asked staff from its offices in New York, Washington, Boston, and other locales to relocate to Lexington. (Bingham is based in Boston, but has approximately 175 lawyers in Washington.)

The city of Lexington is a cultural outlier in the state of Kentucky—its mayor is openly gay. However, in general, Kentucky’s laws affecting the LGBT community are dismal.

The state expressly prohibits same-sex marriage. Its health-care law doesn’t allow a same-sex partner to make decisions on behalf of his or her incapacitated partner. Though sexual orientation is protected under the state’s hate-crimes law, gender identity is not. And neither gender identity nor sexual orientation are covered by Kentucky’s non-discrimination law.

Nonetheless, in a press release announcing the opening of the global services center, Bingham McCutchen’s chairman, Jay Zimmerman, praised Lexington’s “warmth” and “business-friendly environment.” The press release also noted the city’s “vibrant quality of life.”

L. Tracee Whitley, Bingham’s chief operating officer, will make the move to Lexington from Boston. Otherwise, the firm has declined to say how many of the staff asked to move to Kentucky have agreed to do so, saying only that 10 percent of affected employees have “expressed interest.”

Zimmerman did not respond to a request for comment, but a firm spokesperson emphasized in an e-mail to The Washingtonian that “Bingham represents all kinds of positions for our clients in all kinds of matters in our role as legal advocates.” The spokesperson noted that Bingham provides equal benefits to employees in same-sex marriages, “to the extent possible under applicable law.”

She continued: “The different jurisdictional treatments of same-sex marriage are not the only factor influencing businesses’ decisions about where to locate operations. As all businesses do, we make our decisions about where to locate our operations by balancing several relevant—and sometimes competing—factors. In light of the multiple criteria we utilized in deciding where to locate our new global services center, we remain very confident in and pleased about our choice of Lexington, Kentucky, for our new operational hub.”

The big question is whether Bingham’s clients will feel the same way.

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