Saturday, July 7, 2007

How far can people go to avoid their professional duties on religious grounds?

From Overlawyered:
Stephen Dunne, 30, flunked the Massachusetts bar exam and now says it was because he refused on principle to answer an exam question concerning the rights of two married lesbians, their children and property. He claims the hypothetical, which concludes with the question "What are the rights of Mary and Jane?", violated his First Amendment rights and served as a "screening device" to exclude persons like himself who disapprove on religious grounds of the state's gay marriage law.
Let's be clear about this: he left an answer on a bar exam completely blank. No he is suing a group of lawyers for offending his tender sensibilities. Speaking as a lawyer (albeit one who has neither taken the Massachusetts bar exam nor practiced law there, although I have been to Amherst and thought it was nice), this guy would have made a terrible lawyer anyway. There is really no way, if you want to be any good at what you do, to avoid opining on issues that you may find repellent. The law is what it is, and if you don't like it, a lawyer can (a) look for a sneaky way around it or (b) become a lobbyist and try to change it. The simple fact that this guy refused to even consider the question, IMHO, suggests that he does not understand the nature of being a lawyer at all.

I previously discussed doctors and pharmacists who don't want to do their jobs on religious grounds. What gets me about this case is that the guy didn't even try to answer the question. If he had at least written something that would pass as a bar exam essay, I'm not sure there'd be grounds for a lawsuit, but at least there could be a coherent discussion:
Dunne, who describes himself as a Christian and a Democrat, is seeking $9.75 million in damages and wants a jury to prohibit the Board of Bar Examiners from considering the question in his passage of the exam and to order it removed from all future exams.

“There’s a different forum for that contemporary issue to be discussed, and it’s inappropriate to be on a professional licensing examination,” Dunne told the Herald. “You don’t see questions about partial-birth abortion or abortion on there.”

Dunne scored a 268.866 on the bar exam, just missing a passing grade of 270. The exam question at issue concerns two married lesbian attorneys and their rights regarding a house and two children when one decides to end the marriage.
This question has nothing to do with the propriety, morality, validity, etc., of the "marriage" in question--it addresses a situation that is quite likely to occur in the real world (something that rarely happens in law school, trust me.) This guy chooses to skip an entire bar exam question, barely fails, and now blames someone else for offending him. Calling it a "contemporary issue" is one of the most creative non-sequiturs I've heard in some time. The practice of law is pretty dang contemporary, as in it deals with current issues like marriage and divorce--which is legal for homosexuals in Massachusetts, at least at the moment. If you don't think a lawyer should have to address that issue, you don't deserve to be a lawyer. And you make a pretty strange case for your religious beliefs, as well.

One final quote from the article, for my own amusement:
Dunne claims the question was used as a “screening device” to identify and penalize him for “refusing to subscribe to a liberal ideology based on ‘secular humanism,’ ”according to his lawsuit.

“Homosexual conduct is inconsistent with (Dunne’s) Christian practices, beliefs and values, which are protected by the First Amendment,” the lawsuit states.

“I respect people with alternative lifestyles, and we must do that in a civil society,” Dunne said. “I just have a different opinion that millions of people share with me, and I believe that my opinion should be respected just as much as (pro-gay) opinions. I have no intent in spreading hatred or discrimination.”

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