The Washington Post

Is it wrong for lawyers to take cases based on their religious values?

That seems to be the Human Rights Campaign argument, at least as to lawyers who represent the government:

“Gene Schaerr, a Washington, D.C. partner at the law firm Winston & Strawn, is citing his personal religious beliefs as the rationale behind his decision to quit his job and become the lead counsel on the State of Utah’s case against marriage equality. In a copy of Schaerr’s departure email to colleagues at the firm, Schaerr writes that he’s taking the Utah case ‘so that I can fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.’

“‘It’s alarming that the reason Gene Schaerr gives for taking this position has nothing to do with the U.S. Constitution or the legal issues at play,’ said Fred Sainz, HRC Vice President of Communications. ‘Schaerr’s entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns — and that’s wrong. When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.’ …

“Schaerr’s language in his departure e-mail places a heavy emphasis on religion, which is out-of-step with many of the arguments against marriage equality that have come out of the Utah Attorney General’s office.

“‘It’s interesting that his stated motivation for the new position is not one of the arguments made by the State of Utah,’ added Sainz. ‘It’s fair to question whether all of the arguments they have made are just an elaborate front for some other agenda.'”

This strikes me as badly wrong, and indeed deeply unfair to religious believers. Lawyers decide to take cases based on their personal moral values all the time. Lawyers decide to take government cases based on their personal moral values, and indeed seek out certain government jobs based on their personal moral values. Pro-gay-rights lawyers might choose to take pro-gay-rights cases based on their personal moral values — including ones that seek to impose a certain moral viewpoint, such as that embodied in various antidiscrimination statutes, on all citizens.

Nor are lawyers whose moral values are based on secular philosophical principles (e.g., a humanist commitment to equal treatment, including legally coerced equal treatment) somehow have special moral or legal rights on this score. Lawyers whose moral values are based on religious principles, or whose commitment to a case is inspired by their religious principles, have precisely the same rights.

Say someone wanted to defended the Civil Rights Act of 1964 in court because he has deep religious beliefs in favor of racial equality — the civil rights movement, of course, had a heavily religious dimension to it. Or say someone wants to defend environmental legislation because of his religious beliefs about human obligation to protect God’s creation. Or say someone wanted to defend state opposition to the Fugitive Slave Act because of his deep anti-slavery religious principles. These lawyers stand on precisely the same moral and legal footing, I think, as lawyers who took the same views out of secular moral conviction.

Nor is there anything odd that the lawyer’s “stated motivation” for his taking a case isn’t “one of the arguments made” as a legal defense of the case. Someone may defend the Affordable Care Act in court against a Commerce Clause challenge because he believes that everyone is morally entitled to health care — indeed, because he believes that God wants everyone to get health care — even though the legal dispute is about Congressional power and the interpretation of the Constitution.

Indeed, officers of the court “take an oath to uphold the U.S. Constitution, not any particular religious doctrine.” Likewise, they take an oath to uphold the Constitution, not the moral views of the Human Rights Campaign. But there’s nothing wrong with their religious anti-same-sex-marriage ideology, or their secular pro-gay-rights ideology, leading them to choose a particular case, client, or job. Gene Schaerr, I strongly suspect, sincerely believes that the Constitution doesn’t prohibit opposite-sex-only marriage rules. (A sincere belief in the theoretical constitutional soundness of one’s position generally isn’t a requirement for a lawyer who is working for a client, but I strongly suspect that such a sincere belief is present here.) And even if his underlying reason for choosing this particular constitutional case is his religious beliefs, there’s nothing to condemn about that.

Naturally, if you want to criticize Schaerr’s position as constitutionally or morally misguided, that’s just fine. But the fact that he chose to defend that position for religious reasons — as opposed to secular ideological reasons — should not be a basis for criticism.

Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Your Three. Video curated for you.
Next Story
Jonathan H. Adler · January 23, 2014

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.