Do Not Pass the Bar - Final Words

As advertised, I took some time over the weekend to review some pleadings in the Stephen Dunne case. Dunne, you'll recall, took the Massachusetts Bar exam and refused to answer a question that touched on gay marriage. As a result, he failed (by a little more than a point) the test and was denied membership in the Bar. He has taken his gripe to federal court.

I went into the weekend with as open a mind as possible - perhaps Dunne had a really creative argument that might validate his position. It's not beyond human experience, after all, for a young lawyer, or even a pro se plaintiff, to change the law. It's also not beyond at least my experience to hear news reports of a case that makes it sound frivolous, only to dig into the actual pleadings and find that it's much more substantive.

Having said that, I don't think this will be one of those cases. Dunne makes no persuasive argument that his Constitutional rights have been violated. He never explains, for example, how answering a question in which gay marriage is involved, but not at issue, forces him to profess "mandatory adherence with a particular belief" with which he disagrees.* I quoted the question in Friday's post - it's a fairly standard family law bar exam question, crammed with lots of potential issues for young legal eyes to spot. Nothing about it requires a discussion of the merits of gay marriage. It certainly doesn't ask for "mandatory adherence" to a pro-gay marriage position. In fact, one suspects that had Dunne answered the question with a preface disagreeing with Goodridge but actually answering the question he would have passed the exam.

The deeper one presses into Dunne's complaint, the more his real agenda becomes clear. Somewhere around the time he deploys the term "secular humanism" - complete with scare quotes - you begin to suspect that he's after something other than just a licence to practice law in the Commonwealth of Massachusetts. In fact, a considerable amount of Dunne's complaint is dedicated to an attack on Goodridge itself. How is that relevant to Dunne's failure to answer a question on the current state of the law in Massachusetts? It isn't, of course. But that's the big prize that lies at the end of Dunne's Quixote-esque quest. I suspect the federal courts will make quick work of Dunne's case.

Dunne appears to be a disciple of Roy Moore, the disgraced former Alabama Supreme Court Chief Justice who placed loyalty to his version of God's law above the US Constitution. If that's the case, Dunne should question whether this lawsuit will really get him what he allegedly wants. Attorneys are required to swear an oath to uphold the Constitution, not the Ten Commandments or the King James version of the Bible. If he can't do that in good faith, he may not be fit join the profession after all.

* It should be noted that the Bar is seeking dismissal for failure to state a claim, meaning that it (for purposes of that motion only) has to accept Dunne's factual claims as true. Thus, they don't take exception to that characterization of what has occurred.

Do Not Pass the Bar, Do Not Collect $200

The bar exam works like this - you a presented with a fact pattern and question. You're expected to spot the issues and apply the law as it exists, regardless of your opinion on the correctness of that law. Stephen Dunne must have missed that day of bar review. He is suing the state bar of Massachusetts because *shudder* the bar exam had a question that involved gay marriage. Stephen was so offended, he couldn't answer the question:

Stephen Dunne, who is representing himself in the case and seeks $9.75 million, said the bar exam was not the place for a 'morally repugnant and patently offensive' question addressing the rights of two married lesbians, their children and their property. He said he refused to answer the question because he believed it legitimized same-sex marriage and same-sex parenting, which is contrary to his moral beliefs.

* * *

The 'disguised mechanism to screen applicants according to their political ideology has the discriminatory impact of persecuting and oppressing (Dunne's) sincere religious practices and beliefs' protected by the First Amendment, and was 'invasive and burdensome,' according to the lawsuit filed last month.

I like the response of the editor of Massachusetts Lawyers Weekly, who called the suit "idiotic" and said Dunne was "completely missing the point about what it means to be a lawyer." Amen, brother.

Some Updates

I saw a couple of stories in the last couple of days that I blogged about last year. Figured I'd pass along some updates.

First, back in July I blogged about Oscar Pistorius a South African sprinter who is also a double amputee. In the place of legs, he has a pair of ultra high-tech prosthetics. Those were the hurdle (so to speak) he faced in trying to qualify for the next Olympics. Well, the international governing body for track & field has determined that Pistorius is not eligible for Olympic competition:

Brueggemann’s biomechanical and physiological analysis found that from a mechanical standpoint, the Cheetahs were more efficient than a human ankle and could in fact return energy in maximum speed sprinting. Specifically, he established that 'the mechanical advantage of the blade in relation to the healthy ankle joint of an able-bodied athlete is higher than 30 percent.' This means, according to the statement, that Pistorius was able to run at the same speed as the able-bodied sprinters with about '25 percent less energy expenditure.'

In a telephone interview last week, however, Brueggemann noted that this did not necessarily translate to a general advantage. Still, it was enough for the I.A.A.F. to decide that the Cheetahs are in'“clear contravention' of the rules.

An appeal is expected.

Second, late last summer I blogged several times about Stephen Dunne, the Massachusetts would-be lawyer who refused to answer a question on the state bar exam because the factual scenario dealt with same sex marriage (which, you'll remember, is legal in Massachusetts). He sued the state bar, but eventually withdrew the suit. Apparently, he's had a complete change of heart:

Stephen Dunne said he was 'embarrassed' for being an 'instrument of bigotry and prejudice,' in a letter to the editor and interview in the Jan. 3 edition of Bay Windows, a Boston newspaper serving lesbian, gay, bisexual and transgendered readers.

'By filing a misguided federal lawsuit . . . in respect to the legitimacy of same-sex marriage, I have regrettably perpetuated intolerance and animosity towards my fellow Americans,' Dunne said in his letter. 'My religiously based discrimination of gay people was callous and diametrically opposed to America’s core principles of freedom and equality.'

Good for him. It's never to late to evolve your world view.

Declare Victory and Get Out

A sensible plan for Iraq? Maybe, but it's been employed by Stephen Dunne to extricate himself from his bogus lawsuit against the Massachusetts state bar. Dunne asked the court to dismiss his suit because the offending question did not reappear on the July version of the bar exam. He says it is a "corrective action." The bar disagrees:

But in court documents filed yesterday, the board’s attorney said the board has “not agreed to limit the content” of any future bar exams. The board’s decision not to include the same question on the July exam “merely reflects their standard practice of not repeating questions on successive bar examinations,” the court filing said.

Spin away, Mr. Dunne.

Some Weekend Reading

Following up on yesterday's post about Stephen Dunne, who failed the Massachusetts Bar exam because he wouldn't answer a question touching on gay marriage, I've got some weekend reading for everybody, if they're interested.

First, head over to Dunne's site and take a look as his (amended) complaint filed in federal court.

Second, take a look at the Bar's motion to dismiss, supporting memorandum, and attached exhibit.

Then, ponder in the issues for a while. To get you started here (apparently) is the question that Dunne refused to answer (#4, from page 5-6 of the exhibit - paragraph breaks added):

Mary and Jane, both attorneys, were married two years ago in Massachusetts.

The day before their marriage, Mary and Jane each fully disclosed their assets to the other and signed an antenuptial agreement (the “Agreement”) in which each of them agreed that if they were ever divorced (i) they would divide any joint marital property evenly, (ii) they would not seek or accept any property that the other brought into the marriage, and (iii) they would not seek or accept child support or alimony from the other. The Agreement was drafted and reviewed by an attorney representing Jane. Mary did not hire an attorney to review the Agreement as she
“trusted Jane.”

At the time of the marriage Jane had a two year old adopted child, Philip, and Mary was three months pregnant. When Mary gave birth in Boston six months later to Charles, Mary and Jane were listed on his birth certificate as his parents. Mary has treated and referred to Philip as her son, although she did not adopt him. Mary, Jane, Philip and Charles lived in a house in Boston owned by both Mary and Jane. The down payment for this house came only from Mary.

Jane was the sole supporter of the family, while Mary stayed at home taking care of Philip and Charles. Mary had no savings, while Jane had over a million dollars in savings from an inheritance that she received when her mother died three years ago.

Yesterday Jane got drunk and hit Mary with a baseball bat, breaking Mary’s leg, when she learned that Mary was having an affair with Lisa. As a result, Mary decided to end her marriage with Jane in order to live in her house with Philip, Charles, and Lisa.

What are the rights of Mary and Jane?

I'll do the same and be back with some thoughts on Monday.

Do Not Pass the Bar (Redux)

Stephen Dunne, the subject of a post I had back in June about the Bar exam in Massachusetts has left a comment to that post that deserves rebuttal:

The United States Constitution forbids individual states from preventing qualified attorneys from practicing law based on the lawyer’s political leanings. Massachusetts violated the Constitution by including a question on homosexual marriage on the Massachusetts bar examination.
No state can refuse the granting of a law license based upon one’s particular viewpoint.

You're missing the point, Mr. Dunne - the Bar exam is a test to see if you have a sufficient grasp of what the law is, not what you want it to be. If I answered a Bar exam question on a search & seizure issue based on how I'd interpret the Fourth Amendment, rather than how the Supreme Court actually has done so, I'd bomb out on that question. Coincidentally, if I go to the Fourth Circuit and try to tell the court what the Fourth Amendment really means, versus what they've said it means, I lose. Big time.

You obviously have a problem with gay marriage, either in concept or in how it was implemented in Massachusetts. Fair enough. But if want to practice law in that state, you need to know what the Supreme Judicial Court says that law actually is. Suck it up, answer the question, and pass the test. Then you can advocate for a change in the law as an attorney.

As for the idea that a state can't deny someone Bar membership because of their beliefs, ask Matt Hale, although that's obviously an extreme case.

UPDATE: Mr. Dunne has a website dedicated to his lawsuit here, which I discovered via his comment to this post here.