The United States Supreme Court

The United States Supreme Court

Is the American Bar Association trying to “purify” itself of all of those anachronisms who believe, well, men are male and women are female in favor of a position that those who believe such a thing need not be working in the profession?

So argue two longtime leaders in American legal circles, Herb Titus, who taught constitutional law for 26 years and was the founding dean of Regent Law School, and Bill Olson, who served in three positions in the Reagan administration.

They now practice law at Bill Olson, P.C., and wrote the article for a series created by the United States Justice Foundation.

They have posted at the Federalist Society for Law & Public Policy Studies a critique of a proposal from the ABA.

The organization is considering defining as “professional misconduct,” if anyone “in conduct related to the practice of law,” discriminates against anyone “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

States the ABA, this “applies to conduct related to a lawyer’s practice, of law, including the operation and management of a law firm or law practice.”

It’s just, Titus and Olson contend, “the ABA plan to politically purify the legal profession.”

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“Justice Samuel Alito got it right. Dissenting from the Supreme Court’s same-sex marriage decision and responding to the majority’s reassurance that those who oppose same-sex marriage would have their ‘rights of conscience … protected,’ Justice Alito cautioned: ‘We will soon see whether this proves to be true. I assume that those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such…'” the two wrote.

“It took only six months for Justice Alito to be proven right,” they wrote.

The dispute developed as the ABA’s ethics committee decided to jump in the deep end of social activism by adopting protections for gender identity-uncertain people.

The organization’s House of Delegates could be taking action on the proposal as early as this month at its current meetings.

“Enamored with the idea that American society is entering into a new age of sexuality, the ‘perspectives’ of which ‘continue to change in our society,’ the committee wondered if it did not act now their proposal would be upended by ‘outdated’ norms, observing that: ‘Gender identity, not just sexual orientation, has been identified as a basis for discrimination,'” they wrote.

But the longtime experts note, “What is and what is not discriminatory – except for the color of one’s skin – are debatable categories.”

Even so, the ABA is losing its “section assuring the protection of constitutionally protected activities,” they warn. “There is no acknowledgment that First Amendment activities are to be respected, much less protected.”

The ABA even plans to delete the word “knowing,” so that an accusation can be leveled against the unsuspecting, the two said.

The ABA said its new values statement “transcends the Model Rules of Professional Conduct. The Model Rules of Professional Conduct are both rules used by the states and courts to establish standards of conduct and professional discipline and, at the same time, they are a statement of the minimum expected by all lawyers,” the proposal states. “It is time that harassment and discriminatory conduct by a lawyer based on race, religion, sex, disability, LGBTQ status or other factors, be considered professional misconduct…”

“America’s lawyers have been warned,” Titus and Olson concluded. “The ABA is taking the gloves off, looking for a knockout blow in round one of its plan to ‘purify’ politically the legal profession.”

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