State Bar averts a brewing controversy concerning the Rules of Professional Conduct
By Tami Fitzgerald
Christian Action League
The state agency responsible for regulating the legal profession in North Carolina recently averted a brewing controversy concerning the Rules of Professional Conduct (the Rules), the ethics rules by which all licensed attorneys must abide. A subcommittee of the Ethics Committee of the North Carolina State Bar recommended that the Rules be amended to include a nondiscrimination clause stating that “a lawyer should avoid knowingly manifesting through word or deed bias or prejudice based upon a person’s race, gender, national origin, religion, age, disability, sexual orientation, marital status, or other protected status or personal characteristic.”
While in no way advocating for discrimination against any person, attorneys from across North Carolina rallied by sending personal letters and by signing a letter written by the Alliance Defense Fund (ADF) objecting to the “sexual orientation” antidiscrimination clause contained in the amendment. On Thursday, July 23rd, the Ethics Committee voted to withdraw the recommended changes, resulting in no change to the Rules. This was a major victory for attorneys in North Carolina, as well as the general public.
North Carolina law does not currently protect “sexual orientation” as a basis for special status or legal protection (N.C. Gen. Stat. § 143-422.2 which creates a protected status based on “race, religion, color, national origin, age, sex or handicap”). As ADF stated in its letter to the State Bar: “Defining protected status based on individual behaviors—something that is within an individual’s control—radically departs from traditional nondiscrimination provisions. Nondiscrimination provisions traditionally prohibit differential treatment based on characteristics that cannot be changed or altered.” ADF went on to cite a 2008 study by the American Psychological Association that, “[A]cknowledged the absence of a biological link to homosexual behavior, and admitted that such behavior is a choice, impacted by many factors, and not a characteristic with which one is born.”
ADF also cited in its letter the fact that the proposed amendment threatens the autonomy of attorneys to refuse representing clients whose claims are repugnant to their own views and that it violates the First Amendment rights of attorneys—the freedoms of association, speech and religion. ADF objected: “Application of the proposed provision infringes on these rights by forcing attorneys to take cases and thus advocate positions that conflict with their sincerely held religious beliefs. This violates the constitutional proscription against compelled speech, which prohibits the government from compelling private actors, including attorneys, to express or affirm a message contrary to their beliefs.”
Hundreds of North Carolina attorneys responded to the proposed “sexual orientation” nondiscrimination provision by asking the State Bar to reject it. In fact, the subcommittee that had proposed the revision, withdrew its own recommendation prior to the Ethics Committee’s quarterly meeting.
In February this year, the Constitutional Rights & Responsibilities and Family Law Sections of the North Carolina Bar Association (the voluntary professional association for lawyers) offered a continuing legal education class for attorneys called “Sex, Family and the Constitution.” This class explored legal reform in the area of same-sex marriage, child custody by same-sex partners of biological parents, abolishing criminal and civil actions for adultery, and abolishing cohabitation laws. Clearly, the professional associations for attorneys in North Carolina are “pushing the envelope” of sexual equality for homosexuals. These legal organizations are often consulted by the General Assembly when new laws are working their way through the legislative process. North Carolinians who oppose same-sex marriage and all the legal changes that would accompany it should keep their eyes on the NC State Bar and the North Carolina Bar Association.
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