Amicus Curiae Brief — Mark E. Schell, Petitioner v. Richard Darby, Chief Justice, Supreme Court of Oklahoma, et al.
Supreme Court briefDec 10, 2021
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No. 21-779
IN THE
___________
MARK E. SCHELL,
PETITIONER,
V.
THE CHIEF JUSTICE AND JUSTICES OF THE
OKLAHOMA SUPREME COURT, ET AL.,
RESPONDENTS.
___________
On Petition for Writ of Certiorari to the
U.S. Court of Appeals for the Tenth Circuit
__________
BRIEF OF THE LIBERTY JUSTICE CENTER AS
AMICUS CURIAE IN SUPPORT OF PETITIONER
__________
December 10, 2021
Daniel R. Suhr
Counsel of Record
Reilly Stephens
LIBERTY JUSTICE CENTER
141 W. Jackson Blvd., Ste. 1065
Chicago, IL 60604
(312) 637-2280
dsuhr@libertyjusticecenter.org
i
QUESTION PRESENTED
In Keller v. State Bar of California, 496 U.S. 1, 13
(1990), this Court held that mandatory bar dues are
“subject to the same constitutional rule” as compulsory
public-sector union fees. In Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), the Court held that compulsory public-sector union fees are subject to “exacting” First Amendment scrutiny.
The question presented is: Are mandatory bar dues
that subsidize the political and ideological speech of
bar associations subject to “the same constitutional
rule” of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................. i
TABLE OF AUTHORITIES ........................................iii
INTERESTS OF THE AMICI ...................................... 1
SUMMARY OF ARGUMENT
& INTRODUCTION ............................................... 1
ARGUMENT ............................................................... 2
I. States have a compelling interest in the formal regulation of professional legal ethics... ........................... 2
II. The Court should clarify that states do not have a
compelling interest in a mandatory bar to propose ethical codes for the profession ......................................... 5
III. The Court should clarify that “improving the quality of legal services” is not a compelling state interest
that can be narrowly tailored to justify a mandatory
bar ................................................................................ 9
IV. This case provides a clean, simple vehicle to make
these clarifications ..................................................... 15
CONCLUSION ................................................................ 18
iii
TABLE OF AUTHORITIES
Cases
Abood v. Detroit Board of Education, 431 U. S. 209
(1977) ........................................................................ 3
Board of Regents v. Southworth, 529 U.S. 217 (2000)
................................................................................ 14
Engel v. Vitale, 370 U.S. 421 (1962).......................... 13
Greenberg v. Haggerty, 491 F. Supp. 3d 12 (E.D. Pa.
2020) ......................................................................... 6
Harris v. Quinn 573 U.S. 616, 655 (2014) .............. 3, 4
Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203
(1948) ...................................................................... 13
Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018)
........................................................................ passim
Keller v. State Bar of California 496 U.S. 1 (1990)
........................................................................ passim
Lathrop v. Donohue, 367 U.S. 820 (1961) ........... 2, 3, 9
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Commission, 138 S. Ct. 1719 (2018) ...................... 16
N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S.
494 (2015) ................................................................. 2
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
.................................................................................. 1
Wallace v. Jaffree, 472 U.S. 38 (1985)....................... 13
Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) .... 2
Other Authorities
“About the Bar,” Virginia State Bar,
https://www.vsb.org/site/about ................................ 4
“Climate Change Resources,” State Bar of Wis.,
https://www.wisbar.org/NewsPublications/Wisconsi
nLawyer/Pages/article.aspx?Volume=82&Issue=3&Articl
eID=1688 ................................................................ 11
iv
“Green Pro Bono – Helping Provide Solutions to
Climate Change,” Oregon State Bar,
https://sustainablefuture.osbar.org/sectionnewsletter/20114winter2reiner/. ........................... 10
“Issues Facing Transgender Clients: Lawyers, Book
Authors Provide Insight,” State Bar of Wis. (Sep. 5,
2018),
https://www.wisbar.org/NewsPublications/InsideTr
ack/Pages/article.aspx?Volume=10&Issue=15&Arti
cleID=26546 ............................................................ 12
“Lesson 5: Establishment Clause,” Okla. Bar Asso.
https://nie.newsok.com/wp-content/uploads/LawDay-Lesson-5-1.pdf ................................................ 12
“Responses to State Bar of New Mexico
Multijurisdictional Practice Survey,” State Bar of
N.M. (Oct. 2001) ....................................................... 7
“State Bar Board of Governors opposes petition to
amend or repeal diploma privilege, among other
actions,” State Bar of Wis. (Sept. 27, 2010)
https://www.wisbar.org/NewsPublications/InsideTr
ack/Pages/Article.aspx?Volume=0&Issue=0&Article
ID=6161 .................................................................... 8
“Viewing Guide for Engel v. Vitale (1962) Teacher
Notes,” Texas State Bar,
https://www.texasbar.com/civics/viewingguides/High%20School/Engel-v-Vitale/TeacherNotes.pdf ................................................................. 13
Austin R. Vance, “For the Children: Indian Status Is
a Political Classification,” Oklahoma Bar Journal,
February 2020,
https://www.okbar.org/barjournal/feb2020/obj9102v
ance/ ........................................................................ 16
Daniel R. Suhr, The Religious Liberty of Judges, 20
WM. & MARY BILL OF RTS. J. 179 (2011) .................. 7
v
Ed Finkel, “6 Big Ideas: 2018 Wisconsin Legal
Innovators,” Wis. Law. (Nov. 7, 2018),
https://www.wisbar.org/newspublications/wisconsin
lawyer/pages/article.aspx?volume=91&issue=10&ar
ticleid=26663 .......................................................... 12
Eugene Volokh, “A speech code for lawyers, banning
viewpoints that express ‘bias,’ including in lawrelated social activities,” The Volokh Conspiracy
(Aug. 10, 2016),
https://www.washingtonpost.com/news/volokhconspiracy/wp/2016/08/10/a-speech-code-forlawyers-banning-viewpoints-that-express-biasincluding-in-law-related-social-activities-2/............ 6
George W. Dent, Jr., “Model Rule 8.4(g): Blatantly
Unconstitutional and Blatantly Political” Faculty
Publications 2012 (2017) .......................................... 6
Hon. Dennis Jacobs, “Pro Bono for Fun and Profit,”
Speech to the Rochester Lawyers Chapter of the
Federalist Society (Oct. 6, 2008),
https://fedsoc.org/commentary/publications/speechby-judge-dennis-g-jacobs ........................................ 10
Joe Forward, “Phyllis Frye: The Grandmother of the
Transgender Rights Movement,” State Bar of Wis.
(July 17, 2019),
https://www.wisbar.org/NewsPublications/Pages/Ge
neral-Article.aspx?ArticleID=27122 ...................... 12
Johnathan A. Mondel, Note, Mentally Awake, Morally
Straight, and Unfit to Sit?: Judicial Ethics, the
First Amendment, and the Boy Scouts of America,
68 STAN. L. REV. 865 (2016) ..................................... 7
Josh Blackman, Reply: A Pause for State Courts
Considering Model Rule 8.4(g), 30 GEO. J. LEGAL
ETHICS x (2017) ........................................................ 6
La. Atty. Gen. Op. 17-0114 (Sep. 8, 2017) .................. 6
vi
Letter from Kevin Clarkson, Alaska Atty. Gen., to
Alaska Bar Asso. (Aug. 9, 2019) .............................. 6
Letter from Robert Cook, S.C. Solicitor Gen., to State
Rep. John R. McCravy, III (May 1, 2017)................ 6
Lindsey Ker, Lawyers Lack Liberty: State
Codifications of Comment 3 of Rule 8.4 Impinge on
Lawyers’ First Amendment Rights, 28 GEO. J.
LEGAL ETHICS 629 (2015) ......................................... 6
Lyle Moran, “California Split: 1 year after nation's
largest bar became 2 entities, observers see positive
change,” ABA Journal (Feb. 2, 2019), available at
https://www.abajournal.com/web/article/californiasplit-1-year-after-californias-state-bar-became-2entities-observers-see-positive-changes. ............... 18
Micheal Salem, “The Cake and the Constitution,”
Oklahoma Bar Journal, May 2020,
https://www.okbar.org/barjournal/may2020/obj9105
salem/ ...................................................................... 16
Neil J. Wertlieb, “The disruptive and controversial
new rules,” (Calif.) Daily J. (Oct. 17, 2018),
https://www.dailyjournal.com/articles/347613-thedisruptive-and-controversial-new-rules .................. 8
Raymond J. McCoski, JUDGES IN STREET CLOTHES:
ACTING ETHICALLY OFF-THE-BENCH 101-03
(Fairleigh Dickinson U. Press 2017) ....................... 7
Richard Kammen, “Spotlight CLE: Nine Years in the
Guantanamo Goo,” Kentucky Bar Asso. Annual
Conv. (June 13, 2018),
https://cdn.ymaws.com/www.kybar.org/resource/res
mgr/2018_convention/materials/guantanamo.pdf 10
Richard W. Garnett, Whom Should a Catholic
University Honor?: “Speaking” with Integrity, 49 J.
Cath. Legal Stud. 233 (2010) ................................. 14
Ronald Rotunda, “The ABA Decision to Control What
Lawyers Say,” Heritage Foundation (Oct. 6, 2016),
vii
https://www.heritage.org/report/the-aba-decisioncontrol-what-lawyers-say-supporting-diversity-notdiversity-thought ...................................................... 6
Shannon D. Taylor, “Representing Transgender and
Gender-Diverse Clients,” Oklahoma Bar Journal,
May 2020,
https://www.okbar.org/barjournal/may2020/obj9105
taylor/ ...................................................................... 16
Shiny Rachel Mathew, “The Internal Revenue
Service: A Taxing Nightmare,” Oklahoma Bar
Journal, November 2021,
https://www.okbar.org/barjournal/november2021/mathew/ ......................................................... 17
Tenn. Atty. Gen. Op. 18-11 (March 16, 2018)............. 6
Texas Atty. Gen. Op. KP-0123 (Dec. 20, 2016) ........... 6
Tim Eigo, “Climate Change One Focus in New
Arizona Attorney Magazine,” Arizona State Bar
(Oct 13, 2010),
https://www.azbar.org/newsevents/newsreleases/20
10/10/climatechangeonefocusinnewarizonaattorney
magazine/................................................................ 11
Rules
ABA Code of Professional Responsibility Model Rule
8.4(g) ......................................................................... 5
1
INTERESTS OF THE AMICI CURIAE1
The Liberty Justice Center is a nonprofit, nonpartisan,
public-interest litigation firm that seeks to protect economic liberty, private property rights, free speech, and
other fundamental rights. The Liberty Justice Center
pursues its goals through strategic, precedent-setting
litigation to revitalize constitutional restraints on government power and protections for individual rights.
The Liberty Justice Center (LJC) is particularly interested in this case because of its respect for the freedoms of speech and association. LJC represented Mark
Janus in Janus v. AFSCME Council 31, 138 S. Ct.
2448 (2018), which provides the framework for many
of the arguments in this case. LJC also represents the
plaintiff in a challenge to Wisconsin’s mandatory bar
currently pending before the Court of Appeals. File v.
Kastner, et al., Seventh Circuit No. 20-2387.
SUMMARY OF ARGUMENT
AND INTRODUCTION
The First Amendment includes both the freedom to associate and the freedom not to associate. Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984). A
state-imposed mandate requiring an individual to associate with a private organization must pass exacting
scrutiny, Janus v. AFSCME, Council 31, 138 S. Ct.
1 Rule 37 statement: No counsel for any party authored
any part of this brief, and no person or entity other
than amici funded its preparation or submission.
Counsel timely provided notice to all parties of their
intention to file this brief, and counsel for each party
consented.
2
2448, 2483 (2018), which requires a compelling state
interest and narrow tailoring. Williams-Yulee v. Fla.
Bar, 135 S. Ct. 1656, 1664 (2015).
The Court in Keller v. State Bar of California did not
clearly identify a standard of review but referred to the
state’s two interests in a mandatory bar: “regulating
the legal profession and improving the quality of legal
services.” 496 U.S. 1, 13 (1990). In doing so, it drew on
the Court’s previous plurality opinion in Lathrop v.
Donohue, which identified the state’s “legitimate interests” in a mandatory bar as “elevating the educational
and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State.” 367 U.S. 820, 843 (1961).
The Supreme Court should take this case to clarify
that the only state interest sufficiently compelling to
justify a mandatory bar association is the formal regulation of lawyers’ professional conduct.
ARGUMENT
I.
States have a compelling interest in the
formal regulation of professional legal ethics.
States have a compelling interest in ensuring the ethical practice of important professions in our society.
See N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S.
494, 512-13 (2015). This is as true for lawyers as it is
for doctors, accountants, and other professionals.
3
Lathrop was the Court’s first case on mandatory bar
association, and it gave a broad conception of the bar’s
legitimate role. It considered the bar’s role in the formal regulation of lawyers’ professional conduct and in
combatting the unauthorized practice of law. 367 U.S.
at 840-41. In the same breath, it also classified as acceptable the bar’s continuing legal education activities, legal aid committee, and public outreach. Id. It
characterized all of these undertakings as “activities
without apparent political coloration.” Id. at 839.
Keller formalized the Lathrop plurality’s longwinded
discussion of state interests down to a simple sentence
identifying two interests: “regulating the legal profession and improving the quality of legal services.” 496
U.S. at 13. Keller later put greater flesh on the first
interest by describing it as “activities connected with
disciplining members of the bar or proposing ethical
codes for the profession.” Id. at 26-27.
The Court’s discussion of Keller in Harris v. Quinn put
the emphasis squarely on the bar’s role in ethical regulation as the justification for its interest. 573 U.S.
616, 655 (2014). There, the Court’s majority explained
why its holding limiting the application of Abood v. Detroit Board of Education, 431 U. S. 209 (1977), was distinguished from its prior holding in Keller. The Court
described Keller’s holding: “We held that members of
this bar could not be required to pay the portion of bar
dues used for political or ideological purposes but that
they could be required to pay the portion of the dues
used for activities connected with proposing ethical
codes and disciplining bar members.” Harris, 573 U.S.
at 655. The Court continued:
4
Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory
scheme. The portion of the rule that we upheld
served the “State’s interest in regulating the
legal profession and improving the quality of
legal services.” Ibid. States also have a strong
interest in allocating to the members of the
bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.
Harris, 573 U.S. at 655-56.
Harris’ emphasis on the “detailed ethics rules” and
“regulatory scheme” charts the path for this Court in
this case. Some states may choose to characterize the
regulatory authority which enforces these rules as a
mandatory bar. See, e.g., “About the Bar,” Virginia
State Bar, https://www.vsb.org/site/about. As long as it
limits its activities to the formal regulation of legal
ethics, such an approach is narrowly tailored to meet
a compelling state interest, and there is no need to
overrule this holding of Keller.2
A state bar that regulates ethics but also engages
in trade association-type activities is not narrowly
tailored to such an interest.
2
5
II.
The Court should clarify that states do not
have a compelling interest in a mandatory
bar to propose ethical codes for the profession.
When discussing the mandatory’s bar role in maintaining professional standards, Keller permitted “activities connected with disciplining members of the bar
or proposing ethical codes for the profession.” 496 U.S.
at 26-27. “Proposing ethical codes for the profession” is
a different function from enforcing those codes, and
one much more fraught with problematic politics.
Janus counsels against forcing someone to associate
with an organization that takes positions on “controversial public issues.” 138 S. Ct. at 2464. Bar associations frequently take controversial positions by seeking to incorporate politically correct social expectations into professional conduct codes.
Consider, for instance, the move by many bar associations to adopt the amended ABA Model Rule 8.4(g),
which would prohibit lawyers from “engag[ing] in conduct that the lawyer knows or reasonably should know
is harassment or discrimination on the basis of race,
sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or
socioeconomic status in conduct related to the practice
of law.” ABA Code of Professional Responsibility
Model Rule 8.4(g). Numerous scholars have raised concerns about the model rule’s constitutionality and effect on lawyers’ religious liberty and free-speech
rights. See, e.g., Lindsey Ker, Lawyers Lack Liberty:
State Codifications of Comment 3 of Rule 8.4 Impinge
6
on Lawyers’ First Amendment Rights, 28 GEO. J. LEGAL ETHICS 629 (2015); Eugene Volokh, “A speech code
for lawyers, banning viewpoints that express ‘bias,’ including in law-related social activities,” The Volokh
Conspiracy (Aug. 10, 2016)3; Ronald Rotunda, “The
ABA Decision to Control What Lawyers Say,” Heritage
Foundation (Oct. 6, 2016)4; Josh Blackman, Reply: A
Pause for State Courts Considering Model Rule 8.4(g),
30 GEO. J. LEGAL ETHICS x (2017); George W. Dent, Jr.,
“Model Rule 8.4(g): Blatantly Unconstitutional and
Blatantly Political” Faculty Publications 2012 (2017).5
No fewer than five state attorneys general have opined
that the proposed rule suffers severe constitutional defects. Texas Atty. Gen. Op. KP-0123 (Dec. 20, 2016);
Letter from Robert Cook, S.C. Solicitor Gen., to State
Rep. John R. McCravy, III (May 1, 2017); La. Atty.
Gen. Op. 17-0114 (Sep. 8, 2017); Tenn. Atty. Gen. Op.
18-11 (March 16, 2018); Letter from Kevin Clarkson,
Alaska Atty. Gen., to Alaska Bar Asso. (Aug. 9, 2019).
And when Pennsylvania implemented its version of
the model rule, a federal court found that it did indeed
violated the First Amendment. Greenberg v. Haggerty,
491 F. Supp. 3d 12, 33 (E.D. Pa. 2020).
3 https://www.washingtonpost.com/news/volokh-con-
spiracy/wp/2016/08/10/a-speech-code-for-lawyers-banning-viewpoints-that-express-bias-including-in-lawrelated-social-activities-2/.
4 https://www.heritage.org/report/the-aba-decisioncontrol-what-lawyers-say-supporting-diversity-not-diversity-thought.
5 https://scholarlycommons.law.case.edu/faculty_publications/2012.
7
The same concerns can arise regarding amendments
to a code of judicial ethics. In 2003, several bar associations successfully petitioned the California Supreme
Court to adopt a comment to a canon on judicial disqualification that would have prompted recusal by
judges who were volunteer leaders in the Boy Scouts
of America, given the BSA’s then-policy on sexuality.
Daniel R. Suhr, The Religious Liberty of Judges, 20
WM. & MARY BILL OF RTS. J. 179, 209-10 (2011). Twelve
years later, the California Supreme Court formally
adopted an amendment to the code itself barring membership in youth organizations that discriminate and
sent a letter to all judges that they must cease affiliation with the Boy Scouts as of January 1, 2016. Raymond J. McCoski, JUDGES IN STREET CLOTHES: ACTING
ETHICALLY OFF-THE-BENCH 101-03 (Fairleigh Dickinson U. Press 2017). The rules change sparked substantial controversy among judges and the media. Johnathan A. Mondel, Note, Mentally Awake, Morally
Straight, and Unfit to Sit?: Judicial Ethics, the First
Amendment, and the Boy Scouts of America, 68 STAN.
L. REV. 865, 871-72 (2016). Though the initial change
was sought by voluntary local bar associations, it illustrates that even rules petitions can get caught up in
controversial social issues.
Many other rules petitions that do not touch on culture
war issues may nevertheless provoke substantial controversy within the bar. Rules petitions may favor one
type of practice over another, such as a rule expanding
license flexibility for out-of-state lawyers working as
in-house counsel. See “Responses to State Bar of New
Mexico Multijurisdictional Practice Survey,” State Bar
of N.M. (Oct. 2001). They may suggest changes to
standards for attorney-client sexual relationships,
8
which some lawyers may perceive as an invasion of
privacy. Neil J. Wertlieb, “The disruptive and controversial new rules,” (Calif.) Daily J. (Oct. 17, 2018).6
They may pit graduates of in-state law schools against
those who went to law schools in other states. “State
Bar Board of Governors opposes petition to amend or
repeal diploma privilege, among other actions,” State
Bar of Wis. (Sept. 27, 2010).7 In any of a number of
scenarios, proposing amendments to a state’s ethical
code may put a state bar on one side of a controversial
or sensitive issue within the profession or the broader
culture.
Moreover, a mandatory bar is not a narrowly tailored
solution to the need for occasional updates to the rules
of professional conduct. The ABA, which is often the
progenitor of changes to state codes based on changes
to its model code, is a voluntary bar, after all. And
many other actors also bring rules petitions, including
state agencies, public-interest groups, specialty or local bar associations, and individual attorneys, or state
high courts may act on their own volition, either directly or by the creation of study committees. Thus,
there is no unique need for a mandatory bar to ensure
that a state’s professional code is kept current. All the
better, then, to clarify that proposing ethical codes is a
different task entirely than enforcing ethical codes,
and that the state only has a compelling interest in the
latter.
6 https://www.dailyjournal.com/articles/347613-the-
disruptive-and-controversial-new-rules.
7 https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=0&Issue=0&ArticleID=6161.
9
III.
The Court should clarify that “improving
the quality of legal services” is not a compelling state interest that can be narrowly
tailored to justify a mandatory bar.
The other interest identified in Keller, “improving the
quality of legal services,” suffers from the same fundamental defect that the majority critiqued in Janus:
“That formulation is broad enough to encompass just
about anything that the [bar] might choose to do.” 138
S. Ct. at 2481. The “quality of legal services” is a loophole so large that mandatory bars drive truckloads of
politically charged ideology right through it.
The Lathrop plurality identifies the bar’s “many . . .
activities without apparent political coloration”—continuing legal education, the promotion of pro bono legal aid work, and the preparation and distribution of
pamphlets that assist the general public with basic legal questions. 367 U.S. at 839-41.
In reality, though, each of these three activities, and
many others besides that may qualify as “improving
the quality of legal services,” is a platform for State
Bar insiders to use mandatory dues dollars to promote
their political agenda. A continuing legal education
panel may focus on criticizing lawful terrorist detention policies at Guantanamo Bay. See, e.g., Richard
Kammen, “Spotlight CLE: Nine Years in the Guantanamo Goo,” Kentucky Bar Asso. Annual Conv. (June
10
13, 2018).8 A pro bono program may facilitate funneling lawyers into social causes, such as the fight against
climate change. See, e.g., “Green Pro Bono – Helping
Provide Solutions to Climate Change,” Oregon State
Bar.9 See generally Hon. Dennis Jacobs, “Pro Bono for
Fun and Profit,” Speech to the Rochester Lawyers
Chapter of the Federalist Society (Oct. 6, 2008)10
(“Whether a goal is pro bono publico or anti, is often a
policy and political judgment. No public good is good
for everybody. Much public interest litigation, often accurately classified as impact litigation, is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense.”). A
pamphlet for the general public on ordinary legal issues like divorce, landlord-tenant law, or bankruptcy
may pass off as “the law” propositions that many lawyers would find contestable or problematic.
Consider the list of topics about which unions speak,
identified in Janus: “controversial subjects such as climate change, the Confederacy, sexual orientation and
gender identity, evolution, and minority religions.
These are sensitive political topics, and they are undoubtedly matters of profound value and concern to
the public.” Id. at 2476. Ticking down the list, one can
easily find examples of almost every single topic where
8 https://cdn.ymaws.com/www.kybar.org/re-
source/resmgr/2018_convention/materials/guantanamo.pdf.
9 https://sustainablefuture.osbar.org/section-newsletter/20114winter2reiner/.
10 https://fedsoc.org/commentary/publications/speechby-judge-dennis-g-jacobs.
11
mandatory bars are using dues to pay for speech on
these same issues.
Climate change: The Arizona State Bar’s monthly
magazine has an “Earthwise Lawyering” regular feature that “examines innovative trends in environmentally friendly law policy and practice.” Tim Eigo, “Climate Change One Focus in New Arizona Attorney
Magazine,” Arizona State Bar (Oct 13, 2010).11 The inaugural edition of the feature “published two articles
on the effect of climate change on policy and law practice.” Id. The State Bar of Wisconsin’s website offers a
“Climate Change Resources” page that includes links
to numerous advocacy organizations with specific
viewpoints on climate change. “Climate Change Resources,” State Bar of Wis.12 And as noted above, the
Oregon State Bar funnels its members into “Green Pro
Bono” fighting climate change. “Green Pro Bono –
Helping Provide Solutions to Climate Change,” Oregon
State Bar.13
Sexual orientation and gender identity: The State Bar
of Wisconsin recently published a book, “Sexual Orientation, Gender Identity, and the Law” (PINNACLE
2018). “Issues Facing Transgender Clients: Lawyers,
Book Authors Provide Insight,” State Bar of Wis. (Sep.
11 https://www.azbar.org/newsevents/news-
releases/2010/10/climatechangeonefocusinnewarizonaattorneymagazine/.
12 https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/article.aspx?Volume=82&Issue=3&ArticleID=1688.
13 https://sustainablefuture.osbar.org/section-newsletter/20114winter2reiner/.
12
5, 2018).14 The State Bar described the coauthors as
“[Abby] Churchill, an attorney and longtime LGBTQ
community advocate, and Nick Fairweather, a labor
and employment attorney who works on transgender
issues.” Id. The State Bar also produced a video series
to accompany the book featuring the two attorneys. Id.
Later that same year, the State Bar gave Churchill its
Legal Innovators Award for founding TransLaw Help
Wisconsin. Ed Finkel, “6 Big Ideas: 2018 Wisconsin Legal Innovators,” Wis. Law. (Nov. 7, 2018).15 More recently, the State Bar invited “the ‘grandmother’ of the
transgender civil rights movement” to deliver a keynote address that “sheds light on the decades-long
struggle” before a State Bar conference. Joe Forward,
“Phyllis Frye: The Grandmother of the Transgender
Rights Movement,” State Bar of Wis. (July 17, 2019).16
Religion: The Oklahoma Bar Association and Texas
State Bar both offer educational curricula for teachers
to use concerning, among other topics, the First
Amendment’s religion clauses. “Lesson 5: Establishment Clause,” Okla. Bar Asso.17; “Viewing Guide for
Engel v. Vitale (1962) Teacher Notes,” Texas State
14 https://www.wisbar.org/NewsPublications/In-
sideTrack/Pages/article.aspx?Volume=10&Issue=15&ArticleID=26546.
15 https://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?volume=91&issue=10&articleid=26663.
16 https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=27122.
17 https://nie.newsok.com/wp-content/uploads/LawDay-Lesson-5-1.pdf.
13
Bar.18 Both bars’ curricula emphasize the “wall of separation” metaphor that has been criticized by members of this Court. Compare id. with Ill. ex rel.
McCollum v. Bd. of Educ., 333 U.S. 203, 247 (1948)
(Reed, J., dissenting) (“[T]he ‘wall of separation between church and State’ that Mr. Jefferson built at the
University which he founded did not exclude religious
education from that school. . . . A rule of law should not
be drawn from a figure of speech.”); Engel v. Vitale, 370
U.S. 421, 445-46 (1962) (Stewart, J., dissenting)
(“[T]he Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.”); Wallace v. Jaffree, 472 U.S. 38, 107 (1985)
(Rehnquist J., dissenting) (“The ‘wall of separation between church and State’ is a metaphor based on bad
history, a metaphor which has proved useless as a
guide to judging. It should be frankly and explicitly
abandoned.”). This is not to say one view of the Establishment Clause is right or wrong, only that it is a contested point that is nevertheless being propagated
with mandatory dues.
In all these instances—climate change, sexual orientation and gender identity, and the religion clauses—by
the articles and books they publish, the speakers they
highlight, the awardees they honor, these mandatory
bars speak on controversial subjects. The speech of the
presenters, writers, honorees, and curricula may be
right or wrong on any of those issues, but it is speech
18 https://www.texasbar.com/civics/viewing-
guides/High%20School/Engel-v-Vitale/TeacherNotes.pdf.
14
all the same. “To suggest that speech on such matters
is not of great public concern—or that it is not directed
at the ‘public square’—is to deny reality.” Janus, 138
S. Ct. at 2475 (internal quotation omitted).
The bar associations may object that they are not
“speaking” when they publish an article or host a
presentation, but they are merely a neutral forum for
the discussion of ideas, a nonpartisan facilitator of legal discourse. This conception of their activities fails
on three counts.
First, these mandatory bars’ educational activities
hardly meet the standard of “viewpoint neutrality” set
for the use of mandatory fees in Board of Regents v.
Southworth, 529 U.S. 217, 230 (2000). There is no “Climate Change Skeptics Resources” page on the State
Bar of Wisconsin’s website. Second, when a bar association presents awards, it is definitely speaking—it is
lifting up certain individuals or causes as worthy of
emulation, honor, and praise. See Richard W. Garnett,
Whom Should a Catholic University Honor?: “Speaking” with Integrity, 49 J. Cath. Legal Stud. 233 (2010).
Third, when a bar association hosts CLE presentations
or sponsors books, it confers its powerful imprimatur
onto them, especially when the bar positions a presentation or book as a definitive, authoritative statement
of the law, much like a restatement. It defies belief to
think that you are going to get the exact same restatement on the law of sexual orientation and gender identity if it is written by the founder of TransLaw rather
than the lawyer for the Family Council.
In short, mandatory bars do speak, regularly and institutionally, about controversial subjects and issues
15
of public concern. It is impossible to neatly segregate
advocacy on the one side and everything else on the
other and provide a Keller deduction of dues used only
for lobbying the legislature. A state bar’s educational
activities, its events, its awards, its magazine, and virtually everything it does to talk about the law addresses issues of substantial public concern. This will
continue so long as individual lawyers bring their professional experiences, personal backgrounds, and ideological and jurisprudential beliefs to their view of the
law.
This is not a compelling state interest, nor is it narrowly tailored. There are innumerable speakers in the
world about “the law” in all its facets. There are thousands of sponsors for continuing legal education, from
for-profit companies to law schools, law firms, and voluntary bar associations. There are numerous organizations dedicated to promoting pro bono work and civic
education. These endeavors can all continue in their
good works without the need for the government to coerce attorneys into belonging to a mandatory bar.
IV.
This case provides an excellent vehicle for
this Court to clarify the law.
In this case, the Oklahoma Bar Association (OBA)
demonstrates precisely the pitfalls of mandating membership in an organization that functions as an advocacy group and trade association. The Petitioner references numerous instances of the OBA taking political
sides. Pet. at 4-9. These include opposing tort reform
and judicial accountability efforts, and regularly publishing political advocacy funded by member dues. Id.
Petitioner’s examples stop in March of 2019, when he
16
filed his Complaint—but the OBA’s political advocacy
did not stop.
For instance, a February 2020 issue of the Oklahoma
Bar Journal included an article that dismissed critics
of the controversial Indian Child Welfare Act as ignorant at best, racist at worst. Austin R. Vance, “For the
Children: Indian Status Is a Political Classification,”
Oklahoma Bar Journal, February 2020.19 In May
2020, the OBA published a special issue dedicated entirely to “Gender and the Law.”20 The articles included
a review of the Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Commission,
138 S. Ct. 1719, 1723 (2018), that compared those advocating for the rights of religious objectors to segregationists. Micheal Salem, “The Cake and the Constitution,” Oklahoma Bar Journal, May 2020.21 Another
advocated that law offices embrace the more controversial demands of the transgender rights movement,
explaining
that
to
serve
“LGBTQQIAAP,
LGBTTTQQIAA” clients required “explor[ing] implicit
biases lurking in our offices” and embracing nelogistic
alternative pronouns such as “ze/hir, ze/zir, per/pers,
ey/em, xe/xem.” Shannon D. Taylor, “Representing
Transgender and Gender-Diverse Clients,” Oklahoma
Bar Journal, May 2020.22 No dissenting views were
represented.
19 https://www.okbar.org/barjour-
nal/feb2020/obj9102vance/
20 https://www.okbar.org/barjournal/may2020/
21 https://www.okbar.org/barjournal/may2020/obj9105salem/
22 https://www.okbar.org/barjournal/may2020/obj9105taylor/
17
The March 2021 issue was dedicated entirely to “Marajuana and the Law.”23 A May 2021 article recounted
“Oklahoma’s Embrace of the White Racial Identity.”24
Just last month, the Journal published a rant arguing
that the Internal Revenue Service needed more funding so that it could impose more onerous investigations
on law-abiding citizens. Shiny Rachel Mathew, “The
Internal Revenue Service: A Taxing Nightmare,” Oklahoma Bar Journal, November 2021.25
All this would be perfectly fine in the context of a private membership organization. Yet Oklahoma has decided instead to mandate participation in this ideological project. There is no compelling interest in it doing
so. A state need not tie the exercise of regulatory authority to political activism—as demonstrated by all
the states that do not do so.
Even where a state finds it useful to have lawyers engage in self-regulation, there are still opportunities to
bifurcate these regulatory interests from partisan advocacy. For instance, California recently split its unified bar into separate entities. The State Bar of California retained regulatory authority over California
lawyers, while the newly spun-off California Lawyers
Association fulfills the trade-association and advocacygroup roles as a voluntary membership organization—
23 https://www.okbar.org/barjournal/march-2021/
24 Danne L. Johnson and Pamela Juarez, “Oklaho-
ma's Embrace of the White Racial Identity,” Oklahoma Bar Journal, May 2021.
25 https://www.okbar.org/barjournal/november2021/mathew/
18
to what is widely seen as a smashing success.26 There
is no compelling interest in Oklahoma combining these
functions, and no reason why it should be permitted to
do so at the expense of Petitioner’s First Amendment
rights.
CONCLUSION
The Court should grant certiorari to clarify these important points for the good of the profession and the
First Amendment. The Supreme Court should specify
that only the formal regulation of lawyers’ professional
conduct constitutes a state interest sufficiently compelling to justify a mandatory bar association.
Respectfully submitted,
December 10, 2021
Daniel R. Suhr
Counsel of Record
Reilly Stephens
LIBERTY JUSTICE CENTER
141 W. Jackson Blvd.
Suite 1065
Chicago, IL 60604
(312) 637-2280
dsuhr@libertyjusticecenter.org
26 Lyle Moran, “California Split: 1 year after nation's
largest bar became 2 entities, observers see positive
change,” ABA Journal (Feb. 2, 2019), available at
https://www.abajournal.com/web/article/californiasplit-1-year-after-californias-state-bar-became-2-entities-observers-see-positive-changes.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.