Silencing the Lawyers

Earlier this year came the story about the Wyoming municipal judge who may lose her position based on an interview she gave to a newspaper saying she would not perform gay marriages.

 

Well, yesterday the ABA laid the framework yesterday for silencing and lawyers who object to same sex marriage...

 

The profession's new Model Rule Professional Responsibility 8.4(g) reads as follows:

It is professional misconduct for a lawyer to:

(g) engage in conduct that 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...

 

The comment to the rule reads:

[3] ...Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes ... derogatory or demeaning verbal or physical conduct... The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

 

Under current antidiscrimination and anti-harassment case law, florists, bakers and photographers are forced to serve gay weddings because to do otherwise would be harmful and demeaning to the protected class; school boards are penalized if they don't adequately accommodate students on the basis of gender identity who are otherwise harmed, degraded or demeaned.

 

Procedurally, these at model rules which need to be adopted by each individual state bar association... But they are usually adopted verbatim. I wonder which state will refuse to incorporate the sexual orientation/gender identity language. ND's as good a bet as any red state, but I cannot see my peers refusing to enshrine this in our own rules.

 

I wonder how this plays out when a religious institution comes to a lawyer seeking advice on how to protect themselves when firing or not hiring a gay employee, or refusing to rent out the church hall for a wedding or reception. Given case law and the march of SOGI antidiscrimination statutes across the country, its hard to envision a lawyer not knowing it would, in fact, be SOGI discrimination to deny the service and that such a denial would result in "harm" to the "victims..." But did the ABA really just ban the entire ADF and Beckett Fund staff from practicing law?

Catholic Case for Donald Trump? A response.

A Friend Sent me this article and asked my thoughts on it:
http://remnantnewspaper.com/web/index.php/fetzen-fliegen/item/2646-catholics-4-trump-the-catholic-case-for-donald-trump

I guess I'll start with this statement:


"I am under no illusion that Donald Trump is a saint or that he is a deeply religious man. However, we are not living in the age of Catholic confessional states, and there is no St. Louis to vote for. We are instead living in a secular republic with non-believers, hedonists, lukewarm and liberal Christians, and a smattering of conservative Catholics. Donald Trump is a salesman, a businessman, and a competitor... to get results in business you have to deal in reality or you go bankrupt. I believe this key fact is a huge one for Catholics. The very philosophical foundation of our Faith  is recognizing that there is an objective reality and conforming our thought to be in accord with it... Although Trump does not have a 100% Catholic platform, and would never be elected in our society if he did, the one thing he has is common sense. He does what works to get tangible results. With a man who operates based on reality, on what works, on the practical, one can have a conversation."


First off, no one asks us to vote for a Pope or canonization on November 8. This is a complete red herring - we're voting for a President. The statement presupposes that Catholics believe they can only vote for saints running on 100% Catholic platforms. Find me the Catholic Social Doctrine references on property tax reform or sales tax increases for public projects; what does the Church have to say on Grey Wolf hunting in the Upper Midwest; on the definition of "Waters of the United States?" The depth and beauty of our faith is that we can apply it to a platform, we do not use it as a platform - there are many things the Church doesn't speak on and doesn't need to.
Why isn't the author under any illusion that Trump is a saint?  Because such a thought is laughable! Trump's been inconsistent on abortion and Planned Parenthood at best; he has no qualms about transgenderism; he hand-picked a gay Silicon Valley exec to deliver the prime time message before his own RNC speech that attacked the "fake culture wars" in America; the guy is a serial adulterer; he's made millions off enticing other people to gamble in his establishments; he appears to be a compulsive liar.

The author seems to acknowledge in the passing references to sainthood and piety that Trump is morally repugnant to many, but that's ok because he gets results?  We've been down this road before. In 2004 and 2008 well-meaning faithful Catholics (including many I knew) twisted themselves into pretzels distancing themselves from the morally repugnant aspects of Kerry and Obama while wielding snippets of Catholic teaching to justify voting for them. They looked crazy to me, but now I see many Republicans doing the same thing over Trump... 

The author tells us that Clinton will pick 3-4 Supreme Court Justices, will "cement Roe v. Wade into the Constitution" and will silence religious speech.

"Religious Speech"

Moving backwards, the religious speech claim is interesting because of its ambiguity in the use of "religious speech" - I would have used the term "religious freedom" which encompasses much more than speech, such as practice of religion as well. Hillary is no friend to what she calls the "freedom to worship," which is also more limiting than religious freedom. Hillary would limit such a freedom to worship to only the four walls of your worship space. As we're seeing across the country, church-affiliated daycares, gyms, schools and restrooms are being used as "public accommodations" in order to bludgeon Churches into submission to the progressive LGBTQ+? agenda; where public accommodations aren't working, the activists are using employment discrimination claims to force compliance. This will get worse under Hillary, no doubt. But what has Trump said about it? Nothing. Trump doesn't promise to change anything about this. This is the single most important moral issue facing our country- and Trump is silent while Pence's track record shows he caved on religious liberty in Indiana. Hillary may be driving the Religious Suppression Express but Trump and Pence haven't shown any desire to stop or slow it. In fact, Trump has openly considered closing houses of worship that he disagrees with (something that is happening in France under emergency rule) - the precedent set if he were to follow thru with "closing hateful mosques" is every bit as dangerous as the soft (but very real) persecution Obama and Clinton are pushing - it will be Muslims under Trump but, when Clinton or the Next One take the reins in 2020 or 2024, who decides who's "preaching hate" and who gets shut down?

Roe v. Wade/Abortion

On cementing Roe v Wade into the constitution, I'm assuming we're talking about abortion not the case or legal framework of Roe, after all Roe legalized abortion nationwide, and Republican Supreme Court appointees Harry Blackmun, Warren Burger, Anthony Kennedy and Sandra Day O'Connor already cemented Roe and its progeny into the Constitution with their opinions. We know HRC is pro-abortion and now she's pushing for using federal funds for abortion. But what about Trump? He was pro-choice a decade ago and now he's pro-life because he met a kid who's doctors advised his parents to abort due to disabilities, but that kid is now a total superstar...sorry for not buying that.

On the abortion front, I consistently hear that Trump has surrounded himself with "good advisors" but look at this campaign and you'll see Trump routinely acts without consulting his advisors:

• his wife plagiarized Michelle Obama's speech; 
• he favored arresting women who get abortions for a few hours before changing his mind;
• he went off the rails attacking the judge in a case he's party to;
• he had a beauty of a speech written for him at the RNC two weeks ago, then he actually delivered it and couldn't stick to script;
• just last week he encouraged Russia to hack Clinton's SOS emails and release them to the public like the DNC emails;
• currently he's in a public pissing match with the family of a soldier who sacrificed his life for our country and was shamelessly (and brilliantly) used by the Clinton campaign to attack him - Trump took the bait and cannot let go.

No doubt he has good advisors telling him not to do these things- yet he does them regardless of the good advice. Why do we think this would change all of a sudden on 1/20/17? All the best advisors in the world won't do him a lick of good if he doesn't act on their advice. The ugly truth of it is that we have no idea how Trump will act on the issue of abortion. Abortion is a moral issue, but Trump has no history of pro-life action, he has been inconsistent on his position on abortion during the campaign and has only empty promises and good advisors to offer us for the future. We know that Hillary is opening wide the doors of the abortion mills across the country, but we have no idea what Trump will do; he certainly is not a sure-thing to lead pro-life (or pro-choice for that matter) policy, at best he'll be a reactionary safety-valve, preventing things from getting too bad... at best. 

Supreme Court

Finally the Supreme Court. Donald has a list. This has been a deal-sealer for many and I don't blame them. But read the statement with that list. These are people that Trump would "consider" as "potential replacements for Justice Scalia;"  He plans "to use this list as a guide." Trump does not  necessarily plan to pick from that list;  if Trump was to pick someone out of left field, he's off the hook because he only plans to consider these people as potential replacements. Now he may very well pick from that list, and nothing says he won't, but he doesn't say he will pick from the list. (I've been saying for a while that Trump ought to pick a "shadow nominee" -to borrow from British politics- and actually name the person he'd nominate, instead of a list of "potential replacements," but then he'd be bound to sticking with that person and he can't change his mind). Note too, he really couches this in terms of replacing Scalia, though he does say at the end that "this list is a guide to nominate our next United States Supreme Court Justices" so he may go back to the list to replace Ginsberg or Breyer - but there's no guarantee that these people will be his appointees; or that they'd get confirmed. Further, 6 of these judges  on the list are from the Federal Courts of Appeals; the remaining 5 from State Supreme Courts. 7 of the 8 sitting SCOTUS justices came from the Courts of Appeals; as did Scalia. Who will Trump nominate to the Courts of Appeals? Maybe he could give us conservative rock stars as SCOTUS justices, but fill the "farm system" with liberal hacks and cronies. In general, the younger the attorney is that is filling these federal court seats, the more liberal they are. There aren't too many conservative lawyers in my generation, our law schools are percolating with liberal profs (even at UND), gay and abortion rights are taken for granted in law school - the courts won't solve the problem with liberal legal interpretation. The loss of the court for generations is occurring but it hasn't hit the Court yet; it will. The best Trump can do is kick the can down the road and he can't fix the underlying problem.in legal academia.

Further, I've been pondering the following question for a while now: "what are we saving the Supreme Court from or for?" Are we looking for the elusive Fifth Justice to overturn Roe? We've been looking for the Fifth Justice since 1987 when the Dems blocked Bork from being appointed and that's gotten us a whole host of moderate to liberal justices. Are we looking for a Fifth vote to overturn Obergefell? If so, are there any cases working their way thru the Circuits challenging Obergefell? I'm unaware of any. Even if Roe  or Obergefell are overturned, what next? Abortion and same-sex marriage will fall back to the states; there's no culture war victory: 36 states will still have gay marriage, 5 states will have no abortion... but the victory doesn't change culture, the battle for the hearts and minds of the culture will still go on. The Court is NOT the golden ticket to save the country. We're idolizing and romanticizing the role of the Court if we believe that.  If the purpose of saving SCOTUS is to protect the left flank from attacks on Citizens United (campaign contributions), Heller (gun rights), Clean Air Rule, Migratory Bird Rule, carbon emissions standards, voter id, etc - then those are all prudential matters and, though important, don't rise to a moral imperative to vote for Trump.

Finally, along those lines, discerning a person's fitness to serve on the Supreme Court of the United States is also a prudential issue not a moral one. The Court itself may weigh legal questions with moral implications, however the judging of the appropriateness of a certain person for a legal position - that's a question of prudence, in my opinion. Prospective judicial nominees cannot pledge to always take a certain side in certain legal cases, thus even sometimes your Conservative "home runs" like Souter, Kennedy and even Roberts turn out writing head-scratchers (like Souter's entire career, Kennedy on abortion and gay rights, Roberts on Obamacare). I've never hired or fired a person based on morals, it'd be bad business, but its also hard to know to person's heart and mind, so absent a clear record of decisions on "morality impacting decisions," I'd have to put the SCOTUS nominee process in the prudential category, not the moral category.


"With a man who operates based on reality, on what works, on the practical, one can have a conversation."


Honestly, I think this is what drives so many Catholics in politics to get behind Trump... the desire to "have a conversation." The idea that if you get around the table with the Don, he'll see how reasonable and truthful and practical our ideas are and he'll adopt them. All we need is a conversation and things will change for the better and Trump will lead us into a new golden age. Ask Scott Walker, Rand Paul, Jeb Bush, Carly Fiorina, Ben Carson, Marco Rubio, and Ted Cruz how having "a conversation" went for them. Christie largely ignored Trump and bullied Rubio - and it arguably got him the next AG gig. Paul tried to discuss policy and got pushed to the edge of the stage because of it. Bush tried to have a big-boy discussion on economic matters was mocked and shouted down and made to look ridiculous. The only people who ever got anywhere against Trump were Rubio and Cruz and they did that by yelling louder and mocking Trump's body parts. That's no conversation. That's why I don't buy the "advisors" argument either. Seeking a conversation may open the door for certain people to prestigious jobs in DC, in hopes for more political and (top-down) cultural influence down the road, but gambling with The Donald to further one's own career and interests is a calculating move and a prudential matter, not question of morality.


"There is absolutely no moral justification for any Catholic to vote for Hillary Clinton or to assist Clinton in wining the presidency through not voting or voting for a non-viable third party candidate."


Truth is, I don't think there's a moral justification for voting for Trump either. Prudential justification - sure. The author of the article says Catholics have a "moral right to vote" for Trump. Agreed, and they may be justified in doing so - I agree with Trump on trade, he's actually close to forcing us to have a real conversation on immigration, he seems to understand that Islamic jihadism is a real threat... I'd be willing to say there's no moral argument for voting for Clinton. However to condemn Catholics for voting third party as immoral? That's deplorable.

What is a vote? Is a vote simply a utilitarian instrument which is only good and valid if your candidate wins? Or is it an  instrument of political expression? If its utilitarian and only "counts" if you're voting for a "viable" candidate, then every vote for a losing candidate (up and down the ticket) is worthless and you will always be choosing between lesser or two evils. If its an instrument to express your political opinion, then you will see yourself free to actually express your opinion regardless of whether its a right, wrong, winning or losing opinion. Telling people they're morally responsible for electing the most pro-abortion, anti-religious freedom and anti-family candidate in US history simply because they voted against her and Trump does nothing to foster the common good, nothing to help us find common ground and shuts down political conversation in our country and our Church. You might was well call third-party voters "bigots," "haters," "racists" and "fascists."

 My vote for a third party candidate this fall is not going to be a vote to assist Clinton in winning the presidency (in fact, I think Trump will win the election). Remember we're not a majoritarian democracy, but a republican democracy. One need not win 50.1 percent of the vote, but must win 270 electors in the electoral college.  I have no illusions about where my three electoral votes are going - if I was in Ohio or Virginia or Pennsylvania or Florida, I'd probably be leaning Trump for prudential reasons -  here in solid Red ND, I know Trump already has this thing locked down, so instead of voting for the lesser of two evils, (and thereby choosing an evil) I may exercise a prudential vote to help ensure ballot access for the Libertarians in the next round of elections in 2018 (the Libertarian party needs to get 5% of the vote for pres or gov in order to be on ballot in the next elections); I may make a morals-based vote for the Constitution Party but they still don't have ballot access in ND; or I may write-in someone totally different. I have no idea yet.

Perhaps I have rationalized my immoral electoral behavior and I'm just as damned as Clinton voters may be. But I'm willing to make the argument that a third party vote is at least as prudential as a vote for a deeply flawed Trump and better than a vote for Clinton. It may seem irrational to pro-Trump Catholics but I certainly have the "moral right" to cast that vote.

And finally, this: "to get results in business you have to deal in reality or you go bankrupt-" keep in mind the fact that a handful of Trump businesses have, in fact, gone bankrupt in the past...