Akin Gump Anti-Travel Ban, Pro-LGBT Rights Pro Bono Work Spotlighted by Law360

Law360 featured two pro bono engagements on which Akin Gump lawyers have worked over the last 10 months in a feature piece about recent work law firms have taken on around executive administration policies.

The first involves challenges to the Trump administration’s travel ban, which barred travelers from seven Muslim countries. The article notes that Akin Gump lawyers have been representing the Fred T. Korematsu Center for Law and Equality in its filing of amicus briefs challenging Trump’s travel ban as it changed over time. The tack taken is to identify commonalities between the Trump administration’s justification of the ban and the U.S. Supreme Court decision (Korematsu v. U.S.) that allowed Japanese-Americans to be interned during the Second World War.

Akin Gump litigation partner Robert Johnson said, “The government had argued that the president has unreviewable authority to suspend admissions of aliens to the country based on the plenary power doctrine. We wanted to make the connection that just as Plessy v. Ferguson was based on the now-rejected doctrine of ‘separate but equal,’ the Korematsu decision was based on the plenary power doctrine. And here today, just as the courts should reject the Korematsu decision from 1944, this court also should reject the use of the plenary power doctrine.”

Akin Gump Supreme Court and appellate practice co-head Pratik Shah said that a persuasive argument arises from the combination of client and history: “We had a theme that I think would resonate with the court, which is drawing a historical parallel with the Korematsu decision— which holds kind of an especially toxic legacy within the Supreme Court.”

The second engagement involves a potentially precedential case involving a baker who refused to produce a cake for a same-sex wedding. In this case, Akin Gump filed an amicus brief with the Human Rights Campaign on behalf of what Law360 characterized as a wide array of celebrity chefs, restaurateurs and bakers. The thrust of the argument is that food preparation is not a form of protected free speech that is immune from public accommodation laws.

Shah, who, as an Assistant to the Solicitor General, argued against the Defense of Marriage Act during U.S. v Windsor, said of this case, “I think it’s quite clear that the Obama administration would have taken a different position in this case. When the Trump administration filed its brief, I think it raised some eyebrows, not because the Trump administration would support the other side, but that the U.S. decided to file at all in this case.”