Estimated read time: 4-5 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY — With the Human Rights Campaign’s tactic of attacking supporters of Amendment 3 for their religious convictions, we have seen an ugly shift toward divisive politics over civil discourse.
Last week, Fred Sainz of HRC attacked Gene Schaerr, Utah’s lead counsel in the Amendment 3 appeal, for Schaerr’s privately expressed religious convictions.
In a leaked email, Schaerr explained to his associates at his former law firm that he was leaving to defend Utah's Amendment 3 because he felt a "religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and most of my family resides."
Schaerr privately expressed to his professional associates that he believed the U.S. Constitution was on Utah’s side and that it was his duty to take the case.
“Schaerr's entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns, and that's wrong,” said Sainz. “When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.”
Sainz confuses what is constitutional with HRC’s political opinions. As Eugene Volokh observes in the Washington Post: "[Attorneys] take an oath to uphold the Constitution, not the moral views of the Human Rights Campaign."
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.
–Fred Sainz
It is also why, when Sainz came out not just disagreeing with Schaerr’s legal opinions on the case but actually criticizing Schaerr’s upholding his legal oaths in taking the case, that many across the nation — including lawyers critical of Amendment 3 — raised their collective eyebrows.
Accusations of ethical malfeasance are serious in the legal world. They involve bar complaints, tribunals and notorious mention in the bar journal, or even punitive action.
Unfortunately, they probably aren’t alone. Americans have, at least recently, demonstrated an alarming willingness to try to shut down and shut up those they don’t agree with rather than consider and engage them.
A couple examples:
Phil Robertson, patriarch of the A&E's Duck Dynasty clan, came under attack for expressing an opinion critical of homosexual practice. Rather than initiate a conversation between Robertson and his naysayers, A&E shut Robertson up, putting him on an "indefinite hiatus."
Robertson is not entitled to his own opinion, the argument goes, because of his ignorance relative to the opposing viewpoint.
This kind of censorship isn't a problem limited to the political left and the LGBT activist crowd, either. It happens on the other sides, as well.
Dick Metcalf, formerly a firearms journalist for Guns & Ammo magazine and a lifelong gun enthusiast who wrote more than 1,700 articles for firearms publications over the last four decades, was fired when he penned an article that, as he puts it, explored "the distinction between regulation and infringement as it applies to constitutional rights."
“[T]he column was innocuous,” he recalls. “I [...]merely noted the Second Amendment was already regulated and that such regulations had been validated even in recent Supreme Court and federal appeals court rulings affirming an individual’s right to keep and bear arms.”
The result was to be called a “gun control collaborator,” a “Bloomberg supporter” and a “modern-day Benedict Arnold.”
In response to pressure from advertisers, Metcalf was fired.
It doesn’t bode well for American experiment and civil discourse when, instead of discussing issues, we tell our opponents that they aren’t allowed to express their opinions at all, no matter how flawed we feel those opinions might be.
Attorneys — including HRC's own lawyers — take cases for personal reasons quite frequently. Contrary to popular belief, lawyers have motivations beyond greed and malice. There’s a reason that Atticus Finch is often a popular, if fictional, role model for young attorneys. In our adversarial system, justice is best served when good advocates make the best arguments for their clients.
That’s why Schaerr taking Utah’s case to defend Amendment 3’s traditional marriage definition is not only in the spirit of the Constitution, but in the spirit of the oath an attorney swears to uphold when he becomes an attorney. He may form his opinion based on his religious convictions, and we protect that right.
Trying to shut down and shut up that opinion, then, becomes an affront to everything the First Amendment stands for. We can do better. Daniel Burton lives in Holladay, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas.
