Back in January 2010, I speculated that, given the anti-gay, anti-choice Manhattan Declaration signees' threat to engage in "civil disobedience" for purposes of denying LGBT and reproductive rights, "it would be interesting to know whether any individuals or entities [were] aiding and abetting" Lisa Miller's alleged abduction of the child she conceived while with her former partner, Janet Jenkins.
For a brief background on the Miller-Jenkins case, Lisa Miller separated from her female partner, became active in Jerry Falwell's anti-gay church (Falwell also founded Liberty University), renounced her homosexuality, and sought sole custody of the child she conceived while with her former partner. A lengthy custody battle ensued involving the pro-LGBT Lambda Legal and the anti-LGBT Liberty Counsel and ended with a court declaring that both women were legal parents of the child.
Afterwards, however, Miller purportedly denied Jenkins access to the child and then fled the country.
Writing in a Religion Dispatches (RD) exclusive, Sarah Posner writes of a Liberty University Law School exam hypothetical that bears a striking resemblance to the Miller-Jenkins case (and by "bears a striking resemblance," I mean the names in the "hypothetical" are the same, although the "facts" are presented in a bit of a biased manner).
According to an FBI affidavit, Miller fled with the child to Nicaragua and has been "living in the beach house of Christian Right activist and businessman Philip Zodhiates, whose daughter Victoria Hyden works as an administrative assistant at Liberty Law School." Posner writes:
"Students at Liberty Law School tell RD that in the required Foundations of Law class in the fall of 2008, taught by Miller’s attorneys Mat Staver and Rena Lindevaldsen, they were repeatedly instructed that when faced with a conflict between 'God’s law' and 'man’s law,' they should resolve that conflict through 'civil disobedience.' One student said, 'the idea was when you are confronted with a particular situation, for instance, if you have a court order against you that is in violation of what you see as God’s law, essentially... civil disobedience was the answer.'
...That semester’s midterm exam, obtained by RD... included a question based on Miller’s case asking students to describe what advice they would give her 'as a friend who is a Christian lawyer.' After laying out a slanted history of the protracted legal battle, the exam asked, 'Lisa needs your counsel on how to think through her legal situation and how to respond as a Christian to this difficult problem. Relying only on what we have learned thus far in class, how would you counsel Lisa?'
Students who wrote that Miller should comply with court orders received bad grades while those who wrote she should engage in civil disobedience received an A, the three students said. 'People were appalled,' said one of the students, adding, 'especially as lawyers-to-be, who are trained and licensed to practice the law—to disobey that law, that seemed completely counterintuitive to all of us.'"
It would be, I believe, unethical for an attorney to order or assist a client in disobeying a law or court order. And, depending on the state, grounds for disbarment as well. At the same time, I do think this case raises some of the complexities involved in being a licensed attorney, who is an officer of the court sworn to uphold the US Constitution, who also believes that a law, constitutional provision, or ruling is unjust or immoral.
As an attorney, I tend to view the general role of counsel as an informative one- to educate a client of all the options available, as well as the legal consequences of, taking each option. Since the client is the one who must live with hir choices, I find it more appropriate for the client, rather than the attorney, to be the one to actually make the big decisions after being fully informed.
So, hypothetically, I would find it ethical for an attorney to say something along the lines of "if one chose the route of civil disobedience, ze would go to jail." In this case, the attorney wouldn't be advising the client to break the law, but would be explaining what would happen if the client chose to break the law. Yet, it sounds like the "right answer" to Staver's exam was predicated upon the "Christian lawyer" advising Miller to engage in civil disobedience.
Now, Staver didn't respond to RD's request for comments, but Posner cites a New York Times article in which Staver claims that he has had no contact with Miller since the Fall of 2009 and that he did not advise her to break the law.
In Liberty Law School's Revolutionary Hall, "...alongside likenesses of [Dr. Martin Luther] King, Reagan, Ghandi, Mother Teresa and others, the school has installed a painting of Staver arguing before the Supreme Court." Like many who have written of civil disobedience, Dr. King understood the tactic to be a public, non-violent violation of a law for which the actor accepts punishment willingly.
Given that the Manhattan Declaration signees and supporters have publicly boasted of their incredible courage for opposing LGBT and reproductive rights, it will be interesting to see which, if any, wrongdoers in this case courageously admit to wrongdoing and then willingly accept their punishment.
Or, unlike Dr. King, maybe anti-equality advocates are expecting to receive the special privilege of their civil disobedience not having consequences that are inconvenient to their professional and personal lives.