hunter of justice

Kendell 2.0 - I felt like I was playing out of position

Kate Kendell reflects on the personal side of the California roller coaster ride for lgbt rights (with apologies for too much camera movement):

Kate Kendell on whither California

At a recent conference, I had a chance to catch up with Kate Kendell, executive director of NCLR (National Center for Lesbian Rights). She's fab as always.  Following is part 1 of our conversation; tomorrow I'll have a video of Matt Coles talking about the future of marriage campaigns, and on Sunday, Kate reflects on what it was like to jump from litigation chief to an electoral campaign in a state the size of a small country.

Window into the organizing strategy behind the Iowa marriage decision

This morning's Washington Post has a great article on the strategy and field work that led to Lambda Legal's victory in the Iowa marriage case. The article provides well-deserved recognition for Camilla Taylor, the Lambda lawyer who was the brains behind the lawsuit, but who got less attention than she should have when the decision was announced because she recruited a prominent local attorney to argue the case in the Iowa Supreme Court and to serve as the public face of the lawsuit.  

The Post article is also important because it illustrates the kind of pre-litigation groundwork that goes into lgbt rights cases. Some critics of litigation, especially gay marriage litigation, argue that it is naive at best, counterproductive at worst, to try to win rights in court, because judicial opinions can trigger a backlash.  It's true that courts are often not the way to go, but it's also true that lgbt rights litigators have understood that for years, if not decades at this point. The response to this political-legal problem is neither to ignore it nor to relinquish litigation as a tool, but to construct lawsuits in the same way that community organizers construct grassroots movements - by years of studying particular jurisdictions, patient outreach, building networks, recruiting allies, and, ultimately, bringing lawsuits. The Iowa litigation is a great example of that process at work.  And no one views Iowa as over: advocates will continue their work there until the risk of politically overturning the decision is effectively ended, as it has in Massachusetts, where GLAD used exactly the same kinds of approaches. (In fact, the GLAD marriage lawsuits quietly invented this strategy.) These lawsuits illustrate what I call multi-dimensional advocacy. True, it can fail as well as succeed, but it has moved the ball far beyond the stale debate over whether courts are the source of rights.

The Post article is after the jump

New book on conservative cause lawyering

The following review in the Law and Politics Book Review describes Ann Southworth’s LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION, published late last year by the University of Chicago Press.  Southworth is a member of the founding faculty at UC-Irvine Law.  The review was written by Joshua Wilson of the Government Department at John Jay College.

...As the title suggests, Southworth looks at issues related to both infrastructure development as well as the “conservative coalition’s” use of litigation as a political tool. The book’s main task, however, is to describe who the various lawyers within the broader conservative coalition are (e.g. where they went to school, their socio-economic status, what motivates their work, and so on), as well as what connects and separates the various groups that these lawyers represent and to which they belong. ....

[The book] delv[es] into the descriptive details that open the “window into the world of lawyers for conservative causes and probes the little discussed cultural conflict among them” (p.1). Southworth begins this section by asking “whether lawyers of the conservative coalition are likely to contribute to mutual understanding and cooperation within the alliance or whether disagreements and dissimilarities among them make them unlikely to build consensus” (p.42). The short answer to this question is that the lawyers, like the constituencies they represent, are divided by social space and policy goals.

Chapters Three and Four use data about law schools attended, practice location and setting, religion, funding sources, motivation, and professional identity to illustrate the social differences between the various groups of lawyers. Chapter Five begins by continuing this demographic data argument by applying generational grouping to the various lawyers, but it also transitions to investigating other potential substantive or issue-based bridges for the gaps exposed thus far. [For example], the disharmonies around the specifics regarding the desire to reshape the Federal bench and other issue-items, as well as the shared “dissatisfaction with what they viewed as the pillars of the liberal legal establishment” were quite compelling (p.116).

Chapter Six is possibly the most interesting in the book. The data from the preceding three chapters expose multiple rifts that lead one to question the usefulness of collectively identifying the groups as being part of a conservative coalition or movement. In the words of one interviewee, “you quickly find out that [conservative public interest law groups] are really autonomous and inward looking. And there’s not a lot of [collaboration]” (p.121). Chapter Six, however, ... provides the support for the claim that these groups are still part of a common movement.

Professional responsibility in AZ: does unbiased representation extend to lgbt clients?

The Alliance Defense Fund is threatening litigation to block a proposed revision to the Arizona Bar Association oath that pledges unbiased representation to LGBT clients. The proposed revision to the oath states: “I will not permit considerations of gender, race, religion, age, nationality, sexual orientation, disability, or social standing to influence my duty of care.”

The ADF, which is based in Arizona and regularly opposes LGBT rights in courts across the country, said it is particularly concerned about the inclusion of “sexual orientation” in the revised oath.

In a letter to bar association president Edward Novak, the ADF and other conservative lawyers said that “the proposed provision is unnecessary, exceedingly ambiguous, and unconstitutional.”

“We are concerned most particularly that the proposed provision’s vagueness violates due-process and free-speech guarantees and that its application infringes First Amendment rights by compelling conduct and expression in conflict with an attorney’s philosophical or religious beliefs as well as his other professional responsibilities. ... [T]he proposed provision, unlike any other part of the Arizona Bar Oath or Ethics Rules, may be interpreted to force an attorney to undertake particular representation.”

The letter calls on Novak to abandon the revision and warns that if it passes it would be challenged in court. It was signed by more than 30 Arizona attorneys.

Source for the above: 365news

This ADF letter is an outrageous attempt to back the Arizona Bar Association down from making explicit what should be basic to any attorney's representation of any client.  Their First Amendment argument is bogus; no attorney with personal objections to same-sex couples, for example, would undertake to represent that couple. The proposed revision speaks of "duty of care," which refers to persons who are already clients, and would do nothing to force attorneys to take particular cases.  ADF surely knows this, just as they know that clergy would never be forced by a same-sex marriage law to marry same-sex couples, another one of their claims in the marriage cases.

There is much talk in the air of mutual respect between lgbt equality advocates and conservative religious believers who oppose equality - some across the board, some essentially only as to marriage. I share the desire for mutually respectful engagement. But I have no interest in giving credibility to those who traffic in cheap lies and sham arguments, of which this latest ADF move is unfortunately only one of many examples.

UPDATE - The National Lesbian and Gay Law Association is in contact with the Arizona Bar, urging them to proceed with the proposed anti-discrimination principle.