LANSING, Mich. (September 24, 2025) — The Hon. William Wagner (Ret.), former chair of the State Bar of Michigan’s Religious Liberty Law Section, called on the Michigan Supreme Court to uphold constitutional guarantees of Free Exercise of Religious Conscience and Due Process while opposing proposed amendments to Michigan’s Code of Judicial Conduct and Rules of Professional Conduct.
The Michigan Supreme Court is considering ADM File No. 2023-35, which would revise Canon 3 and Rule 6.5 to prohibit judges and lawyers from using words in the performance of their duties that subjectively manifest bias, prejudice, or harassment based on race, sex, gender identity or expression, religion, or sexual orientation.
In a prior written comment submitted to the Court, the Religious Liberty Law Section (RLLS) urged the justices to reject the amendments, noting that the current rules already require lawyers and judges to treat all individuals with courtesy and respect.
Constitutional Concerns
Wagner’s presentation to the Court focused on First Amendment protections, asserting that the proposed changes unlawfully impose content-based restrictions on speech. Citing cases such as Police Dep’t of Chicago v. Mosley and Reed v. Town of Gilbert, the the RLLS explains that government cannot restrict speech based on its subject matter or viewpoint.
“The amendments regulate both the topic and viewpoint of judges and lawyers, making them textbook content-based restrictions,” the section wrote. “Such rules pose the risk of suppressing unpopular ideas through coercion rather than persuasion.”
Wagner’s presentation to the State’s high court also highlighted the Free Exercise Clause, explaining why the amendments would substantially interfere with religious conscience. Under the proposed amendments, attorneys and judges could face professional discipline for expressing sincerely held religious beliefs, especially on matters of sex, gender identity, and sexual orientation.
“The government may not condition professional status on the abandonment of religious conscience,” the section stated, citing Fulton v. City of Philadelphia and Trinity Lutheran v. Comer.
Vagueness and Overbreadth
Beyond First Amendment concerns, Wagner raised constitutional due process objections, revealing the amendments as both vague and overbroad. Because terms such as “bias,” “prejudice,” and “harassment” are undefined, judges and lawyers are left uncertain about what speech could result in discipline. Vague rules invite arbitrary enforcement and chill legitimate speech. Because the proposed language prohibits a “substantial amount” of protected speech, it runs afoul of U.S. Supreme Court precedents prohibiting such overbreadth.
Conclusion
Wagner concluded his presentation to the Supreme Court by calling on the Court to retain the existing Canon and Rule, which already promotes respect in the legal profession without infringing on constitutional rights.
For the reasons discussed herein, we oppose the proposed amendments and recommend keeping the current Canon and Rule requiring lawyers and judges to treat everyone with courtesy and respect.
The Hon. William Wagner (Ret) is Founding President of Salt & Light Global
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