Justice Samuel Alito got it right. Dissenting from the Supreme Court’s same-sex marriage decision and responding to the majority’s reassurance that those who oppose same-sex marriage would have their “rights of conscience ... protected,” Justice Alito cautioned:

We will soon see whether this proves to be true.  I assume that those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employees, and schools.  [Obergefell v. Hodges, No. 14-556 (June 26, 2015) (emphasis added).]

It took only six months for Justice Alito to be proven right. On December 22, 2015—just three days before Christmas—the American Bar Association’s Committee on Ethics and Professional Responsibility announced:

There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status or disability to be captured in the rules of professional conduct.  [Committee on Ethics and Professional Responsibility, Memorandum on Draft Proposal to Amend Model Rule 8.4 (Dec. 22, 2015) at 2 (emphasis added).]

While the inventory of protected categories contains the old—race and sex—there is no doubt where the Committee’s priorities are: the new sexual order. At the top of the list of the lesbian, the gay, and the bisexual, the ABA Standing Committee on Ethics and Professional Responsibility Final Report celebrates the “transgender,” inserting that category alongside sexual orientation to make room for “gender identity,” which the Standing Committee’s report tells us includes “‘gender expression,’ encompass[ing] persons whose current gender identity and expression are different from their designations at birth.”  Id. at 13 (emphasis added).

The Report explains in a footnote, “the U.S. Office of Personnel Management Diversity & Inclusion Reference Materials defines gender identity as ‘the individual’s internal sense of being male or female.”  Id. at 13 n.39 (emphasis added). And how does one know another’s “internal sense”? The Committee intones: “The way that an individual expresses his or her gender identity is frequently called ‘gender expression’ and may or may not conform to social stereotypes associate with a particular gender.”  Id.  Or, as the Standing Committee stated in its working memorandum dated December 22, 2015:

“Gender identity” [is] a new societal awareness of the individuality of gender [that] has changed the traditional binary concept of sexuality.  [Dec. 22, 2015 Memo.]

Huh? Be not dismayed, lowly attorney practicing law in Peoria. Just read Obergefell v. Hodges, the Standing Committee advises: Now that marriage is a “fundamental constitutional right regardless of sexual orientation right” even “marital status” takes on a new meaning and is thus included in the list of discriminatory categories.

Enamored with the idea that American society is entering into a new age of sexuality, the “perspectives” of which “continue to change in our society,” the Committee wondered if it did not act now their proposal would be upended by “outdated” norms, observing that: “Gender identity, not just sexual orientation, has been identified as a basis for discrimination.”  Even though such discrimination is in its nascent stage, the Committee has concluded that “[i]t is time that harassment and discriminatory conduct by a lawyer based ... on LGBTQ status or other factors, be considered professional misconduct ... whether or not such conduct is or is not common in our profession.”  Apparently, the ambiguities will sort themselves out later.

After all, the December 2015 Committee memorandum assured the Committee’s fellow lawyers, that the proposed Rule does not apply to “conduct protected by the First Amendment.”  Indeed, the December memorandum sported an entire paragraph entitled—“Constitutionally Protected Activities”—to reassure the bar that a lawyer does retain a “‘private sphere’ where personal opinion, freedom of association, religious expression, and political speech is protected ... and not subject to the Rule.”  And how does the Comment “make clear” that a lawyer’s First Amendment rights are protected?  Because the Comment says so.  But the Committee, itself, admits that “statements in the Comments are not authoritative.” 

Prior to proposing its new rule of professional conduct, the topic of discrimination was addressed by Comment—and for good reason.  What is and what is not discriminatory—except for the color of one’s skin—are debatable categories. But the Committee would have none of that kind of equivocation, having concluded that the questions are “rhetorical,” not real. It is past time for the rules of professional misconduct include “discrimination, harassment, or intimidation based on “gender or gender identity ... being lesbian, gay, or bisexual.”

Thus, in its final report that will come before the ABA House of Delegates at its August 2017 meeting, the section assuring the protection of constitutionally protected activities has been erased. There is no acknowledgment that First Amendment activities are to be respected, much less protected. And, in the final report, the requirement that a violation be “knowing” has also been deleted, to equip the bar better to root out even subconscious bias and prejudice in the legal profession. 

America’s lawyers have been warned. The ABA is taking the gloves off, looking for a knockout blow in round one of its plan to “purify” politically the legal profession.


Read the memorandum from the ABA, and check out what bar members are saying, both for and against the measure. 

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Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.They now practice constitutional law together, defending against government excess, at William J. Olson, P.C., Vienna, Virginia. E-mail [email protected], visit www.lawandfreedom.com, or follow www.Twitter.com/OlsonLaw. This article is one of a series of articles by the U.S. Justice Foundation on a proposed change in the ethical rules of the legal profession)  U.S. Justice Foundation, 932 D Street Suite 2, Ramona, CA 92065 was founded in 1979. www.usjf.net