Compromise. It is ubiquitous. In last month’s column, I discussed the law students at NYU who refused to represent the county opposing an adoption sought by a gay couple in a moot court case. The law school, lacking backbone, backed down and did not insist the students carry out the assignment. The school unwittingly helped the students deprive themselves of the opportunity to learn how best to represent a gay couple with the same issue in the real world. Wonder whether those students took the same position when they became lawyers, with clients to serve and bills to pay.
But this poses a legitimate question all lawyers must face. Are they selling out if they take cases for causes they find inimical to their cherished values? Does the principle that everyone is entitled to representation override such values? How many criminal defense lawyers have to deal with the question put to them at dinner parties, “How can you represent someone you know is guilty?” When such annoying questions are posed to me, I cite the example of the ACLU representing the National Socialist Party, whose members sought to conduct a parade in Skokie, Ill., wearing Nazi uniforms and displaying swastikas. It usually gets me nowhere.
Set against this troubling backdrop is Business and Professions Code section 6068 regarding the duties of an attorney. Subdivision (h) provides, “It is the duty of an attorney . . . : Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.”
This tension is no less a matter of concern for judges than it is for attorneys. I have friends who seek my advice on applying for a judicial appointment. One such potential applicant told me he was opposed to the death penalty. I told him that if he received a judicial appointment, it was likely, at some point, he would be given a criminal assignment. He also was “unalterably” opposed to the statutes prohibiting prostitution. I told him these concerns should not be a problem provided he followed the law and did not let his personal views influence his rulings and judgment. I emphasized that it would be unacceptable to recuse himself from those cases, because he would be forcing his judicial colleagues to take on assignments he found distasteful. And even trading cases with other judges would not be appropriate, unless a recusal was necessary because of a circumstance a particular case presented‑‑knowing a witness, for example.
Code of Civil Procedure section 170 provides, “A judge has a duty to decide any proceeding in which he or she is not disqualified.” Section 170 was the driving force behind Canon 3B(1) of the California Code of Judicial Ethics which provides, “A judge shall hear and decide all matters assigned to the judge except those in which he or she is disqualified.” ABA Model Code of Judicial Conduct (Feb. 2007) Rule 2.7 provides, “A judge shall hear and decide matters assigned to the judge, except when disqualification is required….” This involves personal bias against a party, witness or attorney, knowledge about the case or personal friendships with parties in the case. The comment to Rule 2.7 says: “The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.”
My friend did not apply for the bench. He never told me whether my informal admonition influenced him. I do believe, however, he was quite capable of doing what the job required of him. Perhaps he thought it would be too much of a struggle.
I read recently in the Washington Post an article by Derek Hawkins about a Social Security Administration judge in Texas who took a defiant stand, perhaps without an inner personal struggle. The judge refused to watch a lesbian, gay, bisexual and transgender (LGBT) video as part of his mandatory diversity training. He asserts his right not to have to watch the video because it subjects him to a “religiously hostile work environment.” The judge claims he will suffer “irreparable harm” unless a court prevents the agency from disciplining him or forcing him to watch the video. If he prevails, his religious beliefs may be superior to those of businesses who balk at doing business with the LGBT community.
The tension between conscience and duty will be heightened in a proposed presidential executive order called “Establishing a Government-Wide Initiative to Respect Religious Freedom.” I heard about this initiative on NPR last week. The Investigative Fund, a non-profit corporation dedicated “to improving the scope and overall quality of investigative reporting in the independent press and beyond,” and the Nation Institute published an article by Sarah Posner on February 1, 2017.
“The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.”
Of course we have no way of knowing whether this proposed “order” will see the light of day. But if it does, it is the judiciary who will be deciding, among other things, its First Amendment implications.
I will resist the temptation to offer solutions to the troubling issues presented in this column. Instead, I leave to you, dear readers, some questions to ponder, a kind of test.
Freedom to worship is one thing, but freedom to exercise and to practice one’s religion is another. How does this distinction affect how we view the position of the administrative judge in Texas and the reach of the Initiative to Respect Religious Freedom?
What is a religion? Does the term “religion” apply only to “established” religions?
Can a set of unique religious principles created by a small group of people constitute a religion? Do numbers matter? Does it matter whether this number is 150,000 or 150?
Do judges who render decisions that protect religious practices for those charged with violating statutes that prohibit those practices help to establish religion?
My view? Bring me a case to decide and I will do my best to provide a principled and coherent answer. I know many of you are not shy about sharing your answers or impressions with me. That is your option. But not to worry, I grade on a curve.
Post Script- Judge Joseph Wapner, a principled judge who consistently decided cases with impartiality, fairness and dedication to the rule of law, was my friend and colleague. He passed away last week. Whether he decided a civil case involving complex business transactions in the Los Angeles Superior Court, or decided whether a pet store negligently dyed a French poodle blue instead of pink on “The People’s Court,” Judge Wapner was the nation’s quintessential fair judge. Unlike many of his television successors, he treated litigants with dignity and fairness. It was easy for him, because he was just being himself. He showed the nation what the judiciary is at its finest. Goodbye, Joe, and thanks for providing the standard we all strive to achieve.