LGBT enforcers may have failed to overthrow religious liberty at the Supreme Court, but already they have readied a Plan B. It goes like this: First, badger lawyers who defend clients’ religious liberty from spurious charges of discrimination and disbar all who refuse to cave to pressure. Second, sue people for discrimination as they live out their religious convictions. Without any lawyers on the other side, the opponents of religious liberty calculate that winning in court will be a cakewalk.
Of course, almost no one will outright admit to attacking religious liberty as such. Instead, they claim to be promoting “tolerance” by targeting “discrimination,” particularly regarding an alphabet soup of sexual orientations. In August 2016, the American Bar Association (ABA) held its annual meeting in San Francisco, a city well-known for its pro-LGBT orientation. There they amended their ethics code to prohibit “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” While this statement alone may be fairly benign, where lawyers are involved, the devil is in the details.
The ABA ethics code, formally known as the “Model Code of Professional Responsibility,” provides a system of ethics guidelines for lawyers which most states have adopted or imitated. As a result, the ABA code wields enormous influence over the ethics codes of state bar associations. These associations control who is licensed to practice law in a particular state, as well as authority to reprimand or disbar lawyers who violate the ethics code. This basically means that state bar associations have judicial power over the legal profession—power that state and federal courts rarely override. As a result, they are not bound by the Supreme Court’s understanding of what counts as discrimination, or by the Supreme Court’s recent protection of religious liberty; they can set their own boundaries.
As an extra dollop of autonomy, for some of these categories the Supreme Court does not even have a definition of discrimination. Federal discrimination law does not address discrimination on the basis of age, sexual orientation, gender identity, marital status, or socioeconomic status. What counts as discrimination against these categories? The Supreme Court has never answered that question, so the bar association would get to answer it first.
Meanwhile, the ABA’s definition of discrimination is far-reaching. The National Lawyers Association’s (NLA) Commission on Constitutional Rights fears that the ABA rule could prevent lawyers from saying anything that could be construed as “harmful,” “derogatory,” or “demeaning” about any of the protected groups. For example, if a lawyer suggests that his client’s religious belief that defines a marriage solely as the union of a man and a woman is legitimate and moral, then the bar association could find that comment to be harmful, derogatory, or demeaning about homosexual couples and punish the lawyer for professional misconduct. If the lawyer suggests that he himself has such a belief—as a way of advertising to potential clients, or even at a lawyer’s convention—then the bar association could discipline him as well.
Once a bar association decides to shut down religious freedom attorneys, then who is going to defend the religious rights of ordinary citizens in court? Several such people, such as Jack Phillips, have won landmark Supreme Court rulings in recent years, but only because they hired top-caliber teams of constitutional lawyers (like the Alliance Defending Freedom) who are dedicated to defending religious liberty. The ABA rule could be used to declare the work of these groups as a violation of professional ethics, and the rule could be used to disbar them—or at least scare them into silence.
There’s no question the ABA rule is a serious threat to religious liberty, but before we give ourselves over to hysteria, let’s consider the good news. The ABA rule has not taken effect in much of the country. While the national organization adopted the rule, it can only take effect in a state once it is approved for that state’s bar associations.
The rule has encountered widespread opposition. The state supreme courts in states like Arizona, Idaho, and South Carolina have found the rule unconstitutional, which prevents it from taking effect there. In Montana, the state legislature also rejected the rule. The NLA’s Commission on Constitutional Rights said the rule violates attorneys’ freedom of speech, freedom of religion, and freedom of association. Even the ABA’s own Standing Committee on Ethics and Professional Responsibility expressed concern that the rule was unenforceable, vague, overbroad, and unconstitutional.
As of October 2017, only one state, Vermont, had adopted the ABA rule for their state bar association. Lawyers in Vermont now have to be careful in case they fall afoul of this sweeping rule in essentially all their conduct, including “representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; 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.”
Still, the ABA sent a letter asking every state supreme court to adopt the rule, so it is officially under consideration in every state that has not explicitly rejected it.
Given religious freedom’s victory this summer at the Supreme Court, you can be sure that pro-LGBT lawyers will explore other avenues to promote their agenda. Because bar associations operate ethics courts which are semi-independent, pushing through this ABA rule is essentially a form of court-shopping. In states where this ABA rule is adopted, it could be a clever way to ambush unsuspecting citizens by removing access to lawyers who are willing to defend them. That’s why vigilance in defense of religious freedom is always necessary.