To hear some tell it, we’ve finally reached the long hoped-for utopian ideal – – – merit and character now count more than “protected classes.”
We have a Black President. We have attained delighted diversity Nirvana. No one is discriminated against because of an immutable characteristic.
And such is the breadth of our post-racial rapture that some say that what U.S. Supreme Court Justice Roberts wrote 5 years ago may even come to pass later this year: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, “Will the Roberts Court Kill Affirmative Action Once and for All?”
The Promised Land.
So does this mean we have reached the Promised Land?
— Not yet.
Last week, a gay prosecutor was denied a judgeship in Virginia. And just yesterday, a video went viral showing how far we’ve yet to travel on the road to egalitarian Eden: A pastor called for death of gays, lesbians.
Charles L. Worley of Providence Road Baptist Church in Maiden, North Carolina said it on videotape. He advocated putting gays, lesbians behind an electric fence. “Feed ’em,” he charitably said. “And you know what, in a few years, they’ll die out. Do you know why? They can’t reproduce.”
Back in Arcadian Arizona.
To their credit, the powers-that-be at the Arizona State Bar didn’t think we’d reached Eden either. Last year, the Bar petitioned to amend a comment clarifying the ethical rule prohibiting lawyers from words or conduct that show bias or prejudice against clients. The Bar wanted to add “gender identity” to the list of specially protected classes.
But the Bar stirred up a proverbial hornet’s nest by trying to further particularize its prohibitions against prejudice by lawyers. The Bar’s petition to the Arizona Supreme Court had sought to“make bias against certain classifications of people professional misconduct, and would add the classification of “gender identity or expression” to the enumerated classifications.”
The bar timorously retreated under the onslaught of opponents led by Cathi Herrod, “Arizona’s Official Marriage Protector.” But since scuttling the clarification to Arizona Ethical Rule 8.4 proved so easy, earlier this year Herrod and her minions came back for more.
It was one of those Martin Niemöller: “First they came for the Socialists…” moments, too.
“First they came for the Socialists, and I did not speak out–
Because I was not a Socialist.
“Then they came for the Trade Unionists, and I did not speak out–
Because I was not a Trade Unionist.
“Then they came for the Jews, and I did not speak out–
Because I was not a Jew.
“Then they came for me–and there was no one left to speak for me.”
Not satisfied with simply blocking gender identity – – – under the pretext of adding clarity, the opponents next moved to eliminate all references to knowing manifestations of lawyer bias or prejudice by words or conduct against clients based on race, sex, religion, national origin, disability, age, sexual orientation, gender identity or socioeconomic status. See Attachment: 1111342272958.pdf
“Ethics Monkeys” still needed.
The move to further clarify professional misconduct by singling out additionally specially protected classes blew up in the Bar’s face. But I guess it’s because everyone knows that Arizona already has such a well-deserved reputation for tolerance and equanimity that Herrod and her supporters felt that ‘less is more.’
The Arizona State Bar sees itself first and last as a consumer protection agency protecting the public from its lawyers. So understandably, like self-designated cops everywhere, i.e., “To Protect and To Serve,” it has a fondness for regulation and specifically, for habitually tinkering with lawyer ethical rules. Most of the time, these rule changes operate below the radar. But not this time.
Now, McFadden’s idea is hardly far-fetched. Indeed, noted primatologist and ethologist at Emory University, Dr. Frans de Waal has expounded on the merits of “Learning Morality from Monkeys.”
If “Monkeys Have Morals After All,” they could have a role to play to help clarify those who remain ethically or morally challenged. And besides, there are worse ethical touchstones than moralistic monkey codes of conduct.
So rather than water down ethical rules against discrimination – – – and in the absence of acceptable amendments to those rules – – – I say instead that if bankers need “Ethics Monkeys,” Lord knows lawyers do, too.
Credits:”Happy Family of Chimpanzee” by Takashi(aes256) Via Flickr Creative Commons-licensed content requiring attribution and share alike distribution;