The North Carolina State Bar recently struck down changes to the North Carolina Rules of Professional Conduct that would have included “sexual orientation” in the list of protected classes. The proposed amendment stated that lawyers should not discriminate against anyone on the basis of race, gender, age or other protected status or personal characteristic. Included next to the traditional protected classes was “sexual orientation.”
For the rules to have included a “sexual orientation” class to a general list of protections would have directly attacked First Amendment rights and the legally-protected right for attorney autonomy.
The Ethics Committee voted to withdraw the recommended changes July 23, proving a major success for attorneys in North Carolina and a set back to the gay movement. However, many other organizations are still subject to advocates seeking a “sexual orientation” nondiscrimination class and should be aware of why it is not a protected class.
According to the Human Rights Education Associates, an international non-government human rights organization, sexual orientation is defined as one’s “emotional, romantic, and sexual attraction to another person,” referring specifically to feelings and self-concept. To agree that sexual orientation is a nondiscrimination class is to presuppose that the parties involved are aware, and therefore prejudiced against another’s sexual orientation.
“Sexual orientation” is not an innate, indisputable characteristic, like race, nationality or sex, and instead encapsulates a concept based on changing personas and personal sexual decisions. The United States Supreme Court grants protected status to immutable characteristics, present from birth and has not recognized “sexual orientation” as a protected class. Therefore, to include sexual orientation is nontraditional as it compares to other nondiscrimination provisions. In including this protected class, the North Carolina State Bar would have assumed that every person is born with an inherent sexual orientation, a fact that is not widely accepted or scientifically proven.
The National Association for Research and Therapy of Homosexuality (NARTH) acknowledges the absence of a biological link to homosexual behavior and instead offers studies to show that homosexuality is a combination of social, psychological and biological factors. The American Psychological Association confirms that “sexual orientation is distinct from other components of sex and gender… and is defined in terms of relationships with others.” Dr. Dennis McFadden, a University of Texas neuroscientist, clarifies: “Any human behavior is going to be the result of complex intermingling of genetics and environment.”
The Ethics Committee struck down the inclusion most likely due to the precedent set by the 1995 United States Supreme Court case, Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, Inc. The case explains: “One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” When applied, a “sexual orientation” protection class would have violated the constitutional protection against compelled speech given to private individuals. The well-established rule against compelled speech and expression prohibits the government from compelling an individual- including an attorney- to express or affirm a message in conflict with his or her private beliefs. If the North Carolina State Bar protected this class, attorneys would have been forced to take cases contrary to their beliefs and therefore, violate expressive First Amendment rights.
A sexual orientation nondiscrimination class would have threatened attorney autonomy as outlined in the Rules of Professional Responsibility. Under these guidelines attorneys are legally allowed to accept or deny a client’s case, just as a private business owner. Should an attorney disagree or find conflict with, a potential client’s case, a sexual orientation protected class would prevent the attorney from refusing to represent the client because his decision might be deemed to have “been influenced by considerations of sexual orientation.” Let me paint you the picture. Suppose a same-sex couple approaches a family law attorney about adopting a child. Regardless of the attorney’s own privately held beliefs, under this provision, the attorney would have been forced to accept the case in fear that his refusal would constitute “sexual orientation” discrimination.
North Carolina was not the only state to consider including “sexual orientation” in the list of protected nondiscrimination classes. In December 2008 the Arizona State Bar proposed adding a “sexual orientation” clause to the Arizona State Bar Oath of Admission. After hearing a month of voiced and written resistance from attorneys and the community, the Arizona State Bar struck down the inclusion. Opposition raised similar critical constitutional arguments including the infringement of First Amendment rights, particularity Freedom of Religion and Freedom of Conscience.
The North Carolina State Bar did reject the proposed provision because it threatened constitutional protected speech and established legal norms. Other similar organizations need to be aware of the legal consequences of including a sexual orientation nondiscrimination class and they too should reject the nontraditional class.
This is a great analysis of this issue from a legal perspective, thanks so much!
Great article! Thanks! You could use Anne Heche as an example. The world was shocked upon hearing the statement the Anne Heche stated in The Late Show with David Lettermen against her ex-husband Coley Laffoon. hardly anybody had ever heard of Coley Laffoon, and not many people really give a tinker’s cuss about him, and probably won’t for some time to come. However, Anne Heche has a bone to pick with him – obviously, because she used to be married to the bum. In her recent appearance on The Late Show with David Letterman, she ripped him a new one. “Can I call someone lazy on TV?” later followed by stating that what he did for money was to “go to the mailbox and say I got another check from Anne!” The former couple had a child together, and she made it known she does not wish to be around Coley Laffoon at all, so maybe he should get some payday loans, or maybe a job.
The phrase “innate, indisputable characteristic” is far too narrow to serve as an essential element of protected classes. It entirely omits religion, which is certainly not “innate” but is clearly a protected class. The meaning of the word “innate” is tied to birth, as is clear from “nativity,” “native son,” and “natal star.” Many millions of people have changed from religion from Greek or Roman mythology to Christianity, from Hindi to Sikh, or from Christian to Muslim. Therefore, religions, which is clearly a protected category, is certainly NOT innate. If you interview people who identify themselves as homosexual (including “gay” or “Lesbian”), you will meet a great many who report that they had tried very hard, earlier in life, to become heterosexual by dating and even marrying someone of the opposite sex, leading each time to failure, grief, and divorce, and only experienced living as “who they truly are” when entering into a homosexual relationship, which they have found to be deeply fulfilling. This suggest that there really is a deep connection, for at least a sizable proportion of homosexuals, to inborn or genetic factors, even though there may be somey who are only somewhat or mildly homosexual, thus leaving some room for choice for those individuals.
Although my father, God be thanked, was heterosexual, he had a very sad childhood because his totally well meaning parents and teachers consistently attempted to help him adjust to using his right hand for writing, holding a fork, etc., but these efforts simply left him mechanically inept – both right and left.
In the ancient and medieval periods of history, left-handedness was condemned. Why else would the Latin word “sinister” evolve from meaning LEFT to meaning DANGEROUSLY UNTRUSTWORTHY in modern English (which is derived from Latin and other languages)? Similarly with the French word “gauche, which still means LEFT when used in French, but, when this word is used in English, it actually means ILL-MANNERED. Although I am not suggesting any link between these two characteristics, I believe that handedness has a definite genetic connection, leaving some room for choice for some individuals and little or none for others.
This actually offended me. Just because they haven’t proven that people are born with their sexuality does not mean they’re not. We did not know that we were made up of atoms, but just because that hadn’t been discovered, does not mean that we weren’t. People deserve not to be discriminated against due to sexual orientation because it is who they are, whether or not they’re born that way, it’s who they are, and they’re being mistreated of it. At the very least, those who make their sexuality known should have some protection under the law.
I thought this was biased but then I read “John W Pope” which tells me this is a religious website. I dont think you need to have been “born that way” to classify as a protected class because religious groups and the elderly are also recognised as protected classes. Homosexuality is not a choice according to the APA.
A law, or an ethics rule, forbidding discrimination against any class of people will always act to limit the harmful acts of bigots. In private a bigot can say whatever s/he wants, but they should not be allowed to act to the detriment of a class of people. To opine that race or gender deserves protection because race and gender are innate by birth tends to presuppose that there is something wrong with the race or gender, hey, ‘they can’t help it’. I offer instead that there is nothing wrong with the race, there is something wrong with the racist. There is nothing wrong with the gender (despite what the holy books tell you), there is something wrong with the sexist. And there is nothing wrong with the homosexual, there is something wrong with the bigot. You can wrap it up in all the impressive intellectual prose, legal jargon, and think-tank financed pseudoscience you want, but bigotry by any other name still smells as rotten and corrosive. This folly and bigotry does not deserve legal protection, but oppressed and despised classes of people do.
Homosexual conduct is not comaprable to being left handed, or choosing one religion. It is destructive in its nature and poses harm to society. The government has responsibility to protect the
health, safety and welfare of the people. Of all the
harms that a society can face, none are worse than
incurring the wrath of God by a blatant policy of
defiance of and disobedience to His plain standard.
So we can legalize racism again, as long as it is based on a sincerely held religious belief. Integration is an affront to the free speech of a person who has such beliefs.