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?