Professor Wagner had the honor of appearing on Steve Gruber’s show recently to talk about a proposed rule effecting all of the judiciary in the state of Michigan. If passed, the rule would violate religious conscience and could preclude judges who hold a Judeo-Christian worldview from serving. It could lead to other First Amendment issues like compelled speech and censorship as well.
Watch the interview for details here, or continue reading below for an excerpt from his comment to the MI Supreme Court.
The Michigan Supreme Court recently published notice of a proposed amendment to Rule 1.109 of the Michigan Court Rules authorizing parties and attorneys to provide “personal pronouns” to a court. It further requires courts “to use those personal pronouns when referring to or identifying the party or attorney.”
Professor Wagner plans to file a formal comment with the Michigan Supreme Court opposing the adoption of the proposed rule: 1) because it unconstitutionally infringes upon fundamental religious liberty protected by the U.S. Constitution, and 2) because it requires judges to lie, which is inconsistent with the Michigan Rules of Professional Conduct.
The First Amendment Protects Freedom of Expression, Especially Expression of One’s Personal Conscience and Religious Identity
Ratified in 1791, the First Amendment to the United States Constitution provides that “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .” U.S. Const. amend I. This language includes no exemption for rules that compel or censure a person’s speech because the government disagrees with the idea or viewpoint expressed.
Bearing witness to the intolerant laws of seventeenth century England that persecuted individuals because of their religious views, the First Amendment balances the need for freedom of speech and religion with the need of a well-ordered central government. See, e.g., Mark A. Knoll, A History of Christianity in the United States and Canada 25-65 (1992); F. Makower, The Constitutional History and Constitution of the Church of England 68-95 (photo. reprt. 1972) (1895). The First Amendment Speech Clause embodies an ideal that is uniquely American—that true liberty exists only where men and women are free to hold and express conflicting political and religious viewpoints. Under this aegis, the government must not interfere with its citizens living out and expressing their freedoms but embrace the security and liberty only a pluralistic society affords.
The Free Speech Clause protects expression of a religious Judge’s viewpoints and ideas, subjecting a State to the strictest of scrutiny if it substantially interferes.
The proposed amendment authorizes parties and attorneys to provide “personal pronouns” to a court and requires judges “to use those personal pronouns when referring to or identifying the party or attorney. In an endeavor to force acceptance of its political policy preferences, the drafters of this rule seek, by force of law and punishment, to censure the viewpoint of many judges in this state, a religious viewpoint consistent with their conscience and inherent in their personal religious identity; moreover, the Court seeks to compel these judges to engage in expression conflicting with it. The disturbing diminishment of the Free Speech Clause, as a practical matter, denudes any meaningful constitutional protection for liberty as a limit on the exercise of State power.
Ubiquitous special preferences for sexual orientation and gender identity (hereinafter SOGI), imposed by states in the name of protecting freedom, too often ignore and threaten fundamental First Amendment liberties. These government actions necessarily require religious people, here Christian people serving in the Michigan Judiciary, to relinquish their right to truthful expression inhering in their personal religious identity.
Through the faith perspective of their Christian identity, Judges truthfully address lawyers appearing in their courtroom daily. The proposed rule says they must cease to do so.
Inconsistency with the Duty of Candor Required under the Michigan Rules of Professional Conduct
Finally, Rule 3.3 of the Michigan Rules of Professional Conduct says
“(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
While the comment suggests the rule governs the conduct of a lawyer representing a client in a tribunal, it expressly also says that “[a]s officers of the court, lawyers have special duties to avoid conduct that undermines the integrity of the adjudicative process.” The proposed amendment to the judicial rules inappropriately, and unconstitutionally, requires a lawyer/judge to do just that. For these reasons, it is our earnest hope that the proposed rule change is not adopted.
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