Counseling Justice: What Advice Could an Attorney have given to Martin Luther King, Jr. at the Edmund Pettus Bridge?

What should a lawyer have advised Martin Luther King, Jr. 50 years ago as he contemplated crossing the Edmund Pettus Bridge?  Posing this question as we witness the anniversary of this act of defiance and in the shadow of Ferguson, Missouri raise compelling questions not only about civil disobedience in America, but only about the connection between law and ethics and the role that attorneys have in advising their clients and in participating in the promotion of social justice.  I confess at the start I do not have all the answers, but the issues here are vexing.
    The connection between law and ethics and civil disobedience has deep roots.  There is Antigone’s burying of her brothers in defiance of the orders of Creon the King.  Socrates challenged Athenian democracy when it ordered him to stop philosophizing.  Jesus and early Christians confronted the Romans as they practiced their faith. St Augustine once proclaimed: “Lex iniusta non est lex”–an unjust law is no law at all.  Natural law believers contend that human law must be based on some natural laws or rules of justice, and thinkers ranging from St Thomas, Thomas Becket, to Lon Fuller have argued that there is an inner morality to the law.  At times human civil law is simply unjust, raising a compelling case for civil disobedience.
    American history is replete with cases of civil disobedience.  Colonists dumping tea into Boston Harbor was as much a political statement about independence as it was a protest against a tax they did not like.  Henry David Thoreau refused to pay his taxes, opting for jail as a protest against slavery and the fugitive slave laws.  And civil rights protestors and those opposed to the Vietnam War too defied laws they deemed unjust. 
    As philosophers John Rawls and Robert Dworkin  argued, the core of civil disobedience is disobeying those laws which you feel are unjust–not simply any law to make your point.  It made sense for Rosa Parks to refuse to sit at the back of the bus in that she was directly challenging the law that discriminated against her.  The Greensboro Four in 1960 sitting at a Woolworth’s lunch counter and demanding service as a protest against segregation laws also defied the law they wished to challenge.  Even King’s march across Edmund Pettus bridge was a legitimate challenge to segregation laws as its defiance was integrally connected to the racial discrimination they were challenging in 1965.  In all these cases breaking the law was meant to protest that law while at the same time highlighting a bigger cause. 
    The purpose of civil disobedience is to bring attention to the  injustice of the law with the goal being to bring about reform.  Because that is the goal, some contend civil disobedience should not be prosecuted.  Whether that is the case can be debated.  Will the civil disobedience be successful and is the cause is just are only a couple of issues to ask.  Will breaking the law send a sufficient message to the majority to change the laws, or will the civil disobedience lose part of its potency by knowledge that one is not risking prosecution, are tactical and political questions that do not lend themselves to simple answers.
    But what if King had come to an attorney in 1965 and asked whether he should break that law.  What should an attorney have done or said?  The contemporary ethical rules for lawyers known as the Rules of Professional Conduct were not in effect then, but assume they were, what do they permit?  The preamble admonishes attorneys to be zealous advocates for their clients while also recognizing that they have “a special responsibility for the quality of justice.”  One hopes that in advising a client one also promotes justice.  Moreover, Rules 1.16 and 3.3, as well as 1.6 collectively  and individually prohibit an attorney from assisting or advising a client to break the law.  Generally a lawyer’s first obligation is to counsel a client to conform to the law–to obey.  But lawyers may advise clients that a law may be unconstitutional but nonetheless also inform the client about the risks of challenging the law.  Similarly, a lawyer may advise a client contemplating civil disobedience about the consequences of disobeying the law and still represent the client afterwards.  Given this, there would have been no problem for an attorney advising King on his options, including what might happen if he crossed the bridge.
    But there are two additional issues here.  Should an attorney have told King to defy the law and march, and what about if the attorney marched with him?  These are tough matters of conscience and ethics.  On the one hand if the attorney thinks the segregation laws (or in this case an injunction) is unjust, should the lawyer counsel breaking the law?  One answer is that if the attorney truly believes the laws are simply unjust (but not illegal) it would be unethical from a lawyer’s ethics point of view to advise breaking the law.  More importantly, an attorney taking this position may not be acting as a zealous advocate for the client.  Such attorneys may be zealously advocating for a cause or they may be pressing their moral views upon a client, but they are not zealous advocates for their  clients.  But even if the moral views of the client and the attorney align, it may be the case that the attorney is no longer able to act primarily with the best interests of the client in mind–there may be a conflict of interest.  In the end, it is not about the attorney’s conscience when advising a client.  If an attorney believes that the law is unethical and wishes to civilly disobey, he or she may do so and cross the bridge, but  at that point one probably should no longer be advising King as an attorney.  The attorney is now a participant in the disobedience, not advising in the matter.  It may be difficult to cross the bridge and advise King at the same time.
    Conversely, is it ethical to advise clients to obey unjust laws?  Would it be wrong to advise disobeying laws connected with supporting an unjust society?  Should an attorney have advised Thoreau to pay his taxes?  For John Brown to raid Harper’s Ferry? Or today, would it be appropriate for an attorney to tell  protestors to block clinics because abortion is wrong?  Is it okay to advise illegal protests against Ferguson and racial discrimination in America?  No one says that lawyers should be indifferent justice; they should do their best to promote it.   But these issues raise a difficult problem of reconciling ethical rules that attorneys are supposed to follow with obedience to the law and ultimately the principles of a just society.  I am not sure what I would have done as  an attorney advising King in 1965.  I hope I would have gotten it right but it is not clear exactly what getting it right actually means.

From Selma to Stonewall: Same-Sex Marriage and the Legacy of Martin Luther King, Jr.

            By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States.  Many will applaud that it is now legal across America and that the battle for equality is over.  Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.

            On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage.  It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve.  This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry.  Federalism may be great for many things, but some constitutional questions demand definitive answers.

            While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry.  Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights.  Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement.  I still think that will occur this year.  It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States.  Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.

            So then what?  Is the battle over?  For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing.  Making same-sex marriage legal across the country takes the issue off the electoral agenda.  But  that is not the end of the story. 

            The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans.  The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality.  It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists.  It exists in school outcomes and incarcerations.  It exists in racial profiling,  income and wealth disparities, and in general attitudes about race, especially and still in the South.

            Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights.  Blacks had Selma, gays and lesbians Stonewall in New York.  Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns.  Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences.  Fifty years later racism remains entrenched in America, especially in the South.  It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly.  These are also the states where reproductive rights are still  most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.

            The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle.  Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America.  The same will be true come later this year when Justice Kennedy writes his 5-4 opinion.  This is what we need to remember as we celebrate Martin Luther King’s birthday.