The signs warning of a coming war over religious freedom in the U.S. were on the horizon long before the 2015 same-sex marriage showdown at the United States Supreme Court, Obergefell v. Hodges. Since at least 2006, wedding photographers, bakers, florists, printers, bed-and-breakfast owners and even government employees, including marriage clerks and judges, have been hauled before state and local commissions and courts on a regular basis for the offense of “discriminating” against homosexuals by refusing to use their creative skills, business or office to promote, enhance or legalize a same-sex wedding or event they couldn’t personally condone because of their faith.
But as the ink on Obergefell was drying, little did anyone suspect the next target of the “new orthodoxy” activists would be lawyers—and that the instigator of the move to cleanse the legal profession of the rights of conscience would be none other than the American Bar Association (ABA), a professional organization that purports to speak on behalf of the 1.3 million lawyers nationwide, even though only about one-third of that number belong to it.
Founded in 1878, the ABA’s stated purpose has been “the advancement of the science of jurisprudence, the promotion of the administration of justice and a uniformity of legislation throughout the country …” Over time, it evolved into an organization that, among other things, has become the sole accrediting agency for law schools and the primary source for ethical rules governing the profession.
If the ABA was still an issue-neutral organization, as it once was, those evolving roles would not necessarily pose a problem for religious conscience. Unfortunately, times have changed at the ABA regarding social issues.
Last August, the ABA adopted a new model rule that, if adopted by all the states, would have dire consequences not only on Christian lawyers, but the people of faith they represent.
During the 1980s, the ABA left behind its reputation for impartiality as a professional organization. A resolution to support abortion on demand first passed at its 1990 annual convention, only to be revoked after rank-and-file members with pro-life beliefs threatened to leave—but was subsequently reintroduced and approved in 1992. Since then, the ABA has endorsed same-sex marriage and special rights based on sexual orientation and gender identity, among other liberal policies.
Many lawyers—including the author of this article—left the ABA over its endorsement of abortion in the 1990s, creating a vacuum that was quickly filled by those members with leftist views of social issues. When combined with its well-entrenched power and influence over the legal profession in general, it was only a matter of time before the ABA’s enthusiastic support for the “new orthodoxy” would clash with the contrary religious beliefs of thousands of American lawyers.
Only six months after Obergefell was decided, the ABA launched its first broadside against religious
opposition to the new court-imposed sexual ethic.
In December 2015, the organization announced it was expanding one of its so-called “model” ethics rules relating to attorney misconduct to include a new provision on “discrimination and harassment.” “Model” rules are so named because they must be adopted by individual states to take effect.
The new provision, Rule 4(g), makes it unethical to “engage in conduct the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
In the section explaining the rule, the ABA defines “conduct related to the practice of law” to be not just representing clients or interacting with witnesses or court personnel, but also “while … operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” The explanation also makes clear the prohibitions apply to “verbal conduct,” which Chapman University law professor Ronald Rotunda explains is simply an oxymoron meant to hide that fact that the rule covers speech, which is protected by the First Amendment.
So what does all this legal language mean for lawyers, the people and causes they represent?
A Clear and Present Danger
The reaction from the religious and conservative segment of the legal profession was direct and to the point. Prominent First Amendment attorneys and organizations rose up in unison to condemn it.
For example, former U.S. Attorney General Ed Meese and Kelly Shackelford, president of First Liberty (a national religious-freedom law firm headquartered in Texas)
addressed a joint letter to the ABA before the August 2016 annual convention where the proposed rule would come up for a vote.
“The American Bar Association proposed new ethics rule for attorneys is a clear and extraordinary threat to free speech and religious liberty, and if adopted with the force of law by any bar, would be an unprecedented violation of the First Amendment,” they wrote, detailing the many thorny issues it would present.
Likewise, the Christian Legal Society, a 52-year-old network between Christian lawyers and law students, voiced similar concerns.
“[T]he proposed rule will have a detrimental impact and a chilling effect on attorneys’ ability to continue to engage in free speech, religious exercise, assembly and expressive association in the workplace and the broader public square,” they wrote in a March 10 letter to the committee working on the rule.
Dozens more such letters and comments were sent to the ABA from lawyers concerned about the impact the proposed rule would have on their First Amendment freedoms.
But the ABA paid little heed. The committee held hearings and made some minor revisions, but passed the rule at its annual convention last August.
The Alliance Defending Freedom (ADF) is another well-known Christian legal organization defending the freedom of people of faith from government overreach, including representing many of the bakers, florists and other businesspeople mentioned above.
ADF Senior Counsel Bradley Abramson tells Citizen the ABA model rule is so vague and broad—prohibiting any “derogatory,” “demeaning” or “harmful” speech related to the practice of law, extending even to bar-association functions and social activities—lawyers will not be able to determine with any degree of certainty what they can actually say. As a result, he explains, “Lawyers will self-censor much of their constitutionally protected speech for fear that what they say could possibly violate the rule and subject them to professional discipline.”
There are at least two important reasons why Christians need to care deeply about this.
“First, people of faith should be concerned whenever the secularist agenda is forced by law upon any segment of the population, be it professional or otherwise,” Abramson tells Citizen. “The new model rule is simply the most recent attempt by the Left to suppress speech it disagrees with. And second, the new rule will interfere with the ability of attorneys to provide faith-based legal advice to clients of faith and to faith organizations. The new rule will interfere with Christian attorneys’ ability to live out their faith in any context even remotely related to their roles as members of the legal profession.”
In other words, who will defend the bakers, florists and wedding photographers if lawyers won’t take their cases because they fear saying the wrong thing—like saying same-sex marriage is immoral, for example—in court, at a bar association event, or even at just a social gathering of other lawyers, could result in losing their license to practice law? As the Meese/Shackelford letter notes: “If implemented nationally, it could lead to the automatic disbarment of attorneys and judges.”
However, it’s not too late to stop this rule from taking effect. The battle has switched to the states.
The ABA’s ethics rules are called “model” rules because they don’t take effect by themselves. They must be adopted by the entity in each state (usually the state’s supreme court) that oversees the licensing of lawyers, as well as the ethics code governing their practices. Lawyers who violate their state ethics code can be disciplined, including having their licenses temporarily suspended, or even being disbarred permanently. Either of these last two options would be a death knell for a lawyer’s livelihood, which largely depends on his or her reputation for ethical conduct.
In a letter to the chief justice of the Colorado Supreme Court sent late last September, for example, the ABA announced the new rule and urged the court (and most likely those in the other 49 states as well) “to undertake a review of the changes and consider integrating them into your state’s rules of professional conduct.” In its letter, the ABA also volunteers to “assist states with the review process.”
States can adopt these model rules in their totality, reject them, or modify them and adopt a different version. The ABA has historically been accorded great deference when it comes to the model language it offers for state legal ethics codes, so there’s a very real possibility many states could soon adopt this one as well.
The lawyers in each state must take up the fight against Rule 4(g) at the local level. For example, Michael Norton, a former federal prosecutor and ADF-allied attorney who is now in private practice in Denver, is doing just that. Last December, Norton sent a letter to the chair of the state ethics committee (which reports to the state supreme court), warning the logic of 4(g) would put lawyers at risk of discipline for:
Serving on boards of churches, religious schools and colleges and other religious institutions that provide incredible benefits to society and yet may hold
beliefs that run afoul of this ABA proposal;
publicly speaking on political, social, cultural and religious topics in ways arbitrarily found to violate it;
holding membership in religious, social, or political organizations whose beliefs are deemed inconsistent with it.
Many voices like Norton’s are being heard, though, as organizations like ADF are putting the word out to like-minded lawyers across the nation to speak up.
Will the states adopt Rule 4(g)? Each state (via its supreme court or other empowered state ethics committee) can choose to adopt the rule in its entirety, or modify it or reject it completely. Will we end up with a red state/blue state divide over which states adopt it? What will religious freedom look like in states where Christian businesspeople can’t find a lawyer to represent them because none are willing to risk their careers to do so?
Is the model rule even constitutional? ADF’s Abramson says it violates both the religious and free-speech clauses of the First Amendment, as well as the due-process clause of the Fourteenth Amendment.
No doubt the rule will trigger lawsuits wherever it is considered, regardless of the outcome. If those challenges are not successful, the face of America’s legal profession, and the nature of our republic, will change for the worse. Lawyers do many things that impact religious freedom: They defend it in courts; they draft legislation protecting it; and they argue for it in public forums that reach the ears of citizens who deserve to hear all points of view.
This attempt by the ABA to demonize conscience and cleanse the nation’s legal profession of politically incorrect beliefs must not succeed. Nothing less than the cause of religious freedom is at stake.
For More Information:
Supporting diversity But Not Diversity of Thought by Ronald D. Rotunda, visit http://bit.ly/2jqFsyL
To read the letter from Ed Meese and Kelly Shackelford to the ABA, visit http://prn.to/2iYkkRA
To learn more about the Christian Legal Society’s views on the issue, log onto http://bit.ly/2jzzmjA
Originally published in the March 2017 issue of Citizen magazine.