Bar Withdraws Sexual Orientation Amendment

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Bar Withdraws Sexual Orientation Amendment

Special Report - August 3, 2009

The North Carolina State Bar Ethics Committee withdrew a proposed amendment to the Rules of Professional Conduct that stated: “While employed in a professional capacity, a lawyer should avoid knowingly manifesting through word or deed bias or prejudice based upon a person’s race, gender, national origin, religion, age, disability, sexual orientation, marital status, or other protected status or personal characteristic.” Comments were received from members of the bar, including a letter that was signed by many attorneys who said that they were in no way advocating for discriminating against any person, but expressed concern with the amendment’s potential to undermine their First Amendment rights, particularly religious liberties.

The letter, which was drafted by the Alliance Defense Fund (ADF), stated that neither state nor federal law recognized protected status based on “sexual orientation.” N.C. Gen. Stat. § 143-422.2 and 42 U.S.C.A. § 2000e-2(a)(1) created protected status based on race, religion, color, national origin, age, sex or (NC) handicap. Instead of “defining protected status based on individual behaviors,…(n)ondiscrimination provisions traditionally prohibit differential treatment based on characteristics that cannot be changed or altered,” according to the letter.

The proposed provision could have forced an attorney to represent a client in a way that violated the attorney’s beliefs, which are based on well-supported social science and sincerely held religious beliefs, that sexual activity outside of marriage is harmful and immoral. The ADF letter stated that “compelling that attorney to represent the client conflicts with federal and state constitutional concerns of due process, free expression, freedom of conscience, and free exercise of religion.”