Thomas More Society Amicus - Brown v. Ind. Bd. of Law Examiners

8/17/2019 Thomas More Society Amicus - Brown v. Ind. Bd. of Law Examiners

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NO. 15-1274

In the

Supreme Court of the United States ___________________

BRYAN J. BROWN,

Petitioner,

v.

INDIANA BOARD OF L AW EXAMINERS,

Respondent.

___________________

On Petition for Writ of Certiorari to the

Supreme Court of Indiana

___________________

BRIEF OF AMICUS CURIAE

THOMAS MORE SOCIETY

in support of PETITIONER

___________________

Thomas L. Brejcha Stephen M. Crampton

Jocelyn Floyd Special Counsel

Thomas More Society Thomas More Society

19 S. LaSalle Street, Counsel of Record

Suite 603 P.O. Box 4506

Chicago, IL 60603 Tupelo, MS 38803

ph: 312-782-1680 ph: 662-255-9439

[email protected]

Counsel for Amicus


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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 2

REASONS FOR GRANTING THE WRIT .............. 3

I. The Lack of Clear Guidelines Invites

Discriminatory Treatment of Applicants. .... 4

A. Constitutional protections apply to

applicants for admission to a state bar. ..... 4

1. Due Process and Equal Protection

apply to Mr. Brown here. ......................... 4

2. The First Amendment applies to Mr.

Brown here. .............................................. 5

B. Lawyers serve as guardians of freedom. .... 6

C. This Court’s precedents offer only“confusing formulas, refined reasonings,

and puzzling holdings.” ............................... 8

II. In our Increasingly Divided Society, the

Potential for Abuse of Power by

Gatekeepers of the Bar Demands Tighter

Controls by this Court. ................................ 10

CONCLUSION ....................................................... 15


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TABLE OF AUTHORITIES

Cases

Baird v. State Bar of Ariz., 401 U.S. 1 (1971) passim

Cantwell v. Conn., 310 U.S. 296 (1940) ................... 5

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ................................................ 12

Everson v. Bd. of Educ., 330 U.S. 1 (1947) .............. 6

Ex parte Garland, 71 U.S. 333 (1867) ..................... 4

Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) 12

Gillette v. United States, 401 U.S. 437 (1971) ....... 13

In re Anastaplo, 366 U.S. 82 (1961) ........................ 9

In re Stolar, 401 U.S. 23 (1971) ......................... 6, 10

Konigsberg v. State Bar, 366 U.S. 36 (1961) ........... 9

Mississippi Comm’n on Judicial Performance v.

Wilkerson, 876 So. 2d 1006 (Miss. 2004) ............... 12

NAACP v. Alabama, 357 U.S. 449 (1958) ............. 13

Schware v. Bd. of Bar Examiners of N.M., 353

U.S. 232 (1957) ..................................................... 4, 9

Shelton v. Tucker, 364 U.S. 479 (1960) ................. 13


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Supreme Court of N.H. v. Piper, 470 U.S. 274 (1985)

............................................................................... 4

Wallace v. Jaffree, 472 U.S. 38 (1985) ............... 7, 13

Walters v. Nat’l Ass’n of Radiation Survivors, 473

U.S. 305 (1985) ......................................................... 8

West Virginia Bd. of Educ. v. Barnette, 319

U.S. 624 (1943) ......................................................... 7

Willner v. Comm. on Character & Fitness, 373

U.S. 96 (1963) ........................................................... 4

Other Authorities

Christian Judge Faces Ethics Charges for Marriage

Views, CBN NEWS, Feb. 26, 2016, available at

http://www1.cbn.com/cbnnews/us/2016/February/

Christian-Judge-Faces-Ethics-Charges-for-

Marriage-Views .................................................. 12

Tim Graham, Networks, Major Papers Skip State

Department Censorship of Fox News Q&A Video,

MRCNEWSBUSTERS, May 11, 2016, 8:27 p.m.,

available at http://newsbusters.org/blogs/nb/tim-

graham/2016/05/ 11/jen-psaki-gets-psnipped .... 12

J. Madison, A Memorial and Remonstrance Against

Religious Assessments .......................................... 6

Ken McIntyre, Judge faces removal, $40K fine

because of her beliefs about marriage, TheHeritage Foundation, May 12, 2016, 2016,

available at http://dailysignal.com/


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2016/05/12/judge-faces-removal-40k-fine-

because-of-her-beliefs-about-marriage/..............11

R. Razzaque, M.D., Psychology Today, The Myth of

Objectivity, Jun. 19, 2012, available at

https://www.psychologytoday.com/blog/political-

intelligence/201206/the-myth-objectivity ............ 7

Alisha Roemeling, Marion judge says he won’t

perform same-sex marriages, STATESMAN

JOURNAL, Sept. 4, 2015, 7:29 a.m., available athttp://www.statesmanjournal.com/story/news/201

5/09/03/marion-county-judge-vance-day-says-he-

not-perform-same-sex-marriages/71669492/ ..... 11

W. Shakespeare, “King Henry VI, pt. 2,” Act IV,

scene 2, line 72 ...................................................... 8


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INTEREST OF AMICUS CURIAE 1

Amicus Curiae Thomas More Society is a not-for-

profit, national public interest law firm dedicated to

restoring respect in law for life, family, and religious

liberty. Based in Chicago, the Thomas More Society

defends and fosters support for these causes by

providing high quality pro bono legal services from

local trial courts all the way to this Court. Since its

founding in 1997, the Thomas More Society has

handled hundreds of cases defending the First

Amendment rights of those expressing themselves

in public fora as well as ensuring the free expression

of religion in the public square.

The Thomas More Society has assisted

thousands of clients, including some of the nation’s

most renowned pro-life and religious leaders: David

Bereit and 40 Days for Life; Lila Rose and Live

Action, Joe, Ann, and Eric Scheidler and the Pro-Life

Action League; Troy Newman and OperationRescue; Former Kansas Attorney General Phill

Kline; Catholic Bishops; Catholic Charities;

Dioceses; Religious Orders; the Notre Dame

Protestors (“ND88”); and many more. Given amicus’

strong interest in the issues presented and its

1 Counsel for a party did not author this brief in whole or in

part, and no such counsel or party made a monetary

contribution to fund its preparation or submission. No person

or entity other than amicus curiae or its counsel made amonetary contribution to the preparation and submission of

this brief. All parties have received timely notice and have

consented to the filing of this brief.


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expertise in the First Amendment, amicus suggests

that this brief may be helpful to the Court.

SUMMARY OF ARGUMENT

The issues presented in this case are of national

importance. A distinguished lawyer of twenty years

who has practiced extensively in both state and

federal courts has been forever banned from even

applying to the Indiana bar in a one-page ruling

devoid of findings of fact or conclusions of law. Although the final order does not expressly reveal

the basis for so severe a punishment, the record

contains troubling evidence of improper motives.

Regulation of the bar is a serious matter, because

lawyers serve as guardians of our freedom. The

absence of clear guidelines in the determination of

character and fitness of applicants to the bar opens

the door to arbitrary and discriminatory denial of

the right to practice law.

This case presents an opportunity for the Court

to establish limits on the use and abuse of the

process of examining bar applicants, and to reaffirm

their fundamental rights to freedom of conscience

and due process.


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REASONS FOR GRANTING THE WRIT

“My question is direct, is that

correct … do you firmly believe that

you’re obligated as a Christian to

put obedience to God’s law above

human law? That’s my question to

you?” “Is that assessment correct?

The question is, is that assessment

correct?” 2

Bryan Brown has practiced law for twenty (20)

years in both state and federal courts all across the

country. He has successfully argued and briefed

cases in several federal appellate courts, and

conducted himself with professionalism and dignity

in highly contentious cases involving issues of the

greatest public concern. Despite his active

participation in cases on the most contentious issues

of our times, he has never been disciplined as an

attorney.

Mr. Brown passed the Indiana bar examination

and satisfied all prerequisites other than the

character and fitness determination. The Indiana

Supreme Court has nevertheless denied Mr. Brown

admission to its bar. Worse, in a one-page order

2

App. 92, n.1. As Mr. Brown explained, this question was putto him “by the government in an official court proceeding, in

persistent voice.” Id. [Note: Petitioner mistakenly cited to App.

78, n.1 in his Petition.]


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devoid of findings of fact or conclusions of law, it has

forever banned him from re-applying.

Although voluminous, the record shows that Mr.

Brown was required to undergo psychological

testing that produced ambiguous results and to

answer invasive and plainly improper questions

suggesting an ideological bias on the part of the

Indiana Board of Law Examiners. Given the absence

of findings of fact and conclusions of law, the

inference of impropriety is strong.

The lack of guidance to states in assessing the

character and fitness of applicants to the bar invites

arbitrary and even discriminatory treatment. This

Court should grant the writ to address this need for

direction.

I. The Lack of Clear Guidelines Invites

Discriminatory Treatment of Applicants.

A.

Constitutional protections apply toapplicants for admission to a state

bar.

1. Due Process and Equal Protection

apply to Mr. Brown here.

While the cases addressing whether a law license

is a liberty interest or a property interest appear to

be conflicting, as Petitioner has shown (Pet. at 28-

30), at a minimum the interest of an applicant is

sufficient to invoke Due Process protections. See,

e.g., Schware v. Bd. of Bar Examiners of N.M., 353


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U.S. 232, 238-39 (1957) (“A State cannot exclude a

person from the practice of law or from any other

occupation in a manner or for reasons that

contravene the Due Process or Equal Protection

Clause of the Fourteenth Amendment.”) (citations

omitted); Willner v. Comm. on Character & Fitness,

373 U.S. 96, 102 (1963) (same); Ex parte Garland, 71

U.S. 333, 379 (1867) (one does not hold a law license

merely “as a matter of grace and favor”); see also

Supreme Court of N.H. v. Piper, 470 U.S. 274, 281

(1985) (“the opportunity to practice law [is] a

‘fundamental right’ which falls within the ambit of

the Privileges and Immunities Clause.”).

The precise nature and extent of the Due Process

protections afforded an applicant to a State bar

remain unclear, however. (Pet. at 28-29).

Respondent here failed to comply even with their

own rules. Those rules allowed Mr. Brown to

subpoena witnesses at the hearing addressing his

character and fitness, yet Respondent failed to allowa single witness to appear in response to Mr.

Brown’s subpoenas. (App. 16-18).

At a minimum, this Court should remand this

case and require that Respondent articulate the

grounds on which it based such a Draconian

sentence against Mr. Brown. Fundamental fairness

demands no less.


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2. The First Amendment applies to Mr.

Brown here.

In addition, under the rule announced in Baird v.

State Bar of Arizona, 401 U.S. 1 (1971), an applicant

for admission to a state bar who has passed the

written examination but is denied admission under

circumstances suggesting bias against his beliefs is

entitled to the protection of the First Amendment.

In Baird, the applicant refused to answer certainquestions promulgated by the State Bar of Arizona

inquiring into her ties to the Communist Party. The

plurality held that such inquiries infringed upon the

applicant’s First Amendment rights. Id. at 7. The

First Amendment “create[s] a preserve where the

views of the individual are made inviolate.” Id. at 6;

see also Cantwell v. Conn., 310 U.S. 296, 303-04

(1940) (The First Amendment “embraces two

concepts – freedom to believe and freedom to act. The

first is absolute but, in the nature of things, thesecond cannot be.”) (emphasis added); see also In re

Stolar, 401 U.S. 23 (1971) (refusal to answer

questions concerning ties to Communist Party

protected by First Amendment).

Mr. Brown, like Ms. Baird, passed the written

examination but was denied admission under the

character and fitness review. Respondent chose not

to reveal the exact reasons for the denial. The

implication from the record, however, and the

nature of the questions put to Mr. Brown regardinghis religious beliefs, give rise to an inference of illicit

motive.


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In his “Memorial and Remonstrance,” James

Madison wrote: “The Religion then of every man

must be left to the conviction and conscience of every

man; and it is the right of every man to exercise it as

these may dictate. This right is in its nature an

unalienable right.” J. Madison, A Memorial and

Remonstrance Against Religious Assessments,

reprinted in Everson v. Board of Educ., 330 U.S. 1,

64 (1947) (Rutledge, J., dissenting). Unless this

Court acts, this case places at risk the consciences of

bar applicants everywhere.

B. Lawyers serve as guardians of

freedom.

A system that allows the gatekeepers of the bar

to arbitrarily deny applicants a license to practice

law has grave implications not only for the bar itself

but for the nation at large.

The record below contains troubling evidence of

the use of multiple mental health professionals

whose findings were varied and from which

Respondent was free to selectively choose the most

favorable portions to support what appears to have

been the outcome it desired. Compare App. 9, n.1

(stating that Dr. Flueckiger found that Mr. Brown

satisfied the requirements of Rule 12 and

“recommended that he be permitted to sit for the

Indiana bar examination”) with App. 9, n.2 (stating

that Dr. Bowman found troubling that Mr. Brown

“firmly believes he is obligated as a Christian to put


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obedience to God’s laws above human laws”).3 The

obvious inference of Dr. Bowman’s highlighting Mr.

Brown’s orthodox Christian views is that they

formed a basis on which to recommend denial of Mr.

Brown’s application.

As Justice Jackson eloquently stated in West

Virginia Board of Education v. Barnette, 319 U.S.

624, 642 (1943): “If there is any fixed star in our

constitutional constellation, it is that no official,

high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act

their faith therein.” See also Wallace v. Jaffree, 472

U.S. 38, 52 (1985) (noting that “the right to speak

and the right to refrain from speaking are

complementary components of a broader concept of

individual freedom of mind”). The actions of

Respondent are dangerously close to violating this

principle of freedom of the mind, effectively

prescribing what shall be orthodox among membersof the State Bar of Indiana.

3 The debate over whether the mental health field even

constitutes a science continues, but the “myth” of true

objectivity has largely been settled. See, e.g., R. Razzaque,

M.D., Psychology Today, The Myth of Objectivity, Jun. 19, 2012,

available at https://www.psychologytoday.com/blog/political-

intelligence/201206/the-myth-objectivity (last accessed May

13, 2016).


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Justice Stevens warned that we must remember

“the function of the independent lawyer as a

guardian of our freedom.” Walters v. Nat’ l Ass’ n of

Radiation Survivors, 473 U.S. 305, 371 (1985)

(Stevens, J., dissenting). It no coincidence that

Shakespeare’s oft-quoted line, “The first thing we do,

let’s kill all the lawyers”4 was spoken by Dick the

Butcher, a rebel seeking to seize power illegally.

With respect to that play, Justice Stevens wrote: “As

a careful reading of that text will reveal,

Shakespeare insightfully realized that disposing of

lawyers is a step in the direction of a totalitarian

form of government.” Id. at n.24.

In the words of Justice Stevens, allowing states

to discriminate on the basis of an applicant’s

religious beliefs “is a step in the direction of a

totalitarian form of government.” It is incumbent

upon this Court to guard the gatekeepers, and to set

the limits within which the grant or denial of a law

license must operate.

C. This Court’s precedents offer only

“confusing formulas, refined

reasonings, and puzzling holdings.” 5

This Court has wrestled with the questions

presented here for many years, but has failed as yet

to articulate clear guidelines to aid the various state

4 W. Shakespeare, “King Henry VI, pt. 2,” Act IV, scene 2, line

72.5 Baird, 401 U.S. 1, 4.


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bars in setting limits on the nature and extent of

inquiries into the beliefs of applicants. As the Court

observed 45 years ago in Baird: “Sharp conflicts and

close divisions have arisen in this Court concerning

the power of States to refuse to permit applicants to

practice law in cases where bar examiners have been

suspicious about applicants’ loyalties . . .” 401 U.S.

1, 3 (1971).

Even then, the issue was becoming “increasingly

divisive and bitter.” Id. Fourteen years prior to

Baird, in 1957, the Court reversed the State’s denial

of admission of a former Communist to the New

Mexico Bar, 5-3, with one Justice not participating.

Schware v. Bd. of Bar Examiners, 353 U.S. 232

(1957). The petitioner in that case had been arrested

several times in the past, had used various aliases

for a period of four or five years, and admitted to

having been a member of the Communist Party. Id.

at 234, 236. The Court nevertheless carefully

considered the record as a whole, and concluded:“The undisputed evidence in the record shows

Schware to be a man of high ideals with a deep sense

of social justice.” Id. at 240. The same could be said

of Mr. Brown here.

In Konigsberg v. State Bar, 353 U.S. 252 (l957),

this Court held that it violated Due Process to deny

an applicant admission to the California bar solely

because he refused to answer questions about his

membership in the Communist Party. Four years

later, after remand, this Court affirmed, by a 5-4vote, denial of Konigsberg’s application to the bar,

finding that refusal to answer the questions


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obstructed a full investigation. Konigsberg v. State

Bar, 366 U.S. 36 (1961). In yet another case, this one

out of Illinois and raising issues similar to those in

Konigsberg and Schware, the Court affirmed the

denial of the applicant’s admission after he refused

to answer those questions, 5-4, finding no Due

Process violation. In re Anastaplo, 366 U.S. 82

(1961).

Ten years after the affirmation of those two

denials based on ideological concerns, the plurality

in Baird reversed a denial based on the applicant’s

prior history with the Communist party. The Court

summarized the state of the law: “The foregoing

cases and others contain thousands of pages of

confusing formulas, refined reasonings, and

puzzling holdings that touch on the same suspicions

and fears about citizenship and loyalty.” Baird, 401

U.S. 1, 4.

The rulings in Baird and Stolar affirmedapplicants’ rights to their political and religious

beliefs, but nonetheless did little to clarify the state

of the law as a whole, and more recent cases provide

little help by way of additional clarity.

II. In our Increasingly Divided Society, the

Potential for Abuse of Power by

Gatekeepers of the Bar Demands Tighter

Controls by this Court.

Mr. Brown’s case is hardly an isolated one. Thelegal profession has become fair game for politically

motivated discipline on the basis of unpopular


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viewpoints, especially religious ones. As our

citizenry grows increasingly polarized, the need for

this Court to set clear guidelines becomes all the

greater.

In most other cases, though, discipline is brought

to bear only after the subject has acted upon his

beliefs, or at least publicly expressed them. In Mr.

Brown’s case, Respondent has imposed the harshest

of discipline before he ever acted. Moreover, it has

done so by means of labeling him mentally unstable.

The offense is therefore all the more egregious.

For example, in Wyoming, a small town judge

faces removal from office for having told a reporter

that she could not perform same-sex marriage

ceremonies due to her religious beliefs. See Ken

McIntyre, Judge faces removal, $40K fine because of

her beliefs about marriage, THE HERITAGE

FOUNDATION, M AY 12, 2016, 2016, available at

http://dailysignal.com/2016/05/12/judge-faces-removal-40k-fine-because-of-her-beliefs-about-

marriage/ (last accessed May 14, 2016).

In Oregon, Marion County Circuit Judge Vance

Day is under investigation by the Commission on

Judicial Fitness and Disability for refusing to

perform same-sex marriages. See Alisha Roemeling,

Marion judge says he won’t perform same-sex

marriages, STATESMAN JOURNAL, Sept. 4, 2015, 7:29

a.m., available at

http://www.statesmanjournal.com/story/news/2015/09/03/marion-county-judge-vance-day-says-he-not-

perform-same-sex-marriages/71669492/ (last


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accessed May 10, 2016). Judge Day, an outspoken

Christian, believes it would violate his conscience to

perform the ceremonies. In addition, under Oregon

law judges are not required to perform weddings,

and Judge Day has never even been asked to

perform a same-sex ceremony. See Christian Judge

Faces Ethics Charges for Marriage Views, CBN

NEWS, Feb. 26, 2016, available at

http://www1.cbn.com/cbnnews/us/2016/February/Ch

ristian-Judge-Faces-Ethics-Charges-for-Marriage-

Views (last accessed May 13, 2016). Instead, like Mr.

Brown’s situation, Judge Day is being investigated

simply as a result of his beliefs and his speech, not

any action.

In Mississippi, Justice Court Judge Connie Glen

Wilkerson faced disciplinary charges for a letter to

the editor of a local weekly newspaper he had

written in his private capacity due to his Christian

viewpoint on the controversial topic of homosexual

rights. Although finally exonerated, JudgeWilkerson was forced to take his case all the way to

the Mississippi Supreme Court. Mississippi Comm’n

on Judicial Performance v. Wilkerson, 876 So. 2d

1006 (Miss. 2004). Ironically, Mr. Brown was one of

the lawyers assisting Judge Wilkerson.

Outside the narrow confines of the law, it has

become almost routine to hear of sanctions imposed

against bakers, wedding photographers, and court

clerks for their conscientious objection to

participation in a same-sex wedding ceremony, ofboycotts against the likes of North Carolina and

Mississippi for adopting laws protecting freedom of


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conscience, and of protests against those who try to

live out their faith.

This Court has noted and condemned the fact

that religious speech, in particular, has long been

singled out for censorship: “Indeed, in Anglo-

American history, at least, government suppression

of speech has so commonly been directed precisely at

religious speech that a free-speech clause without

religion would be Hamlet without the prince.”

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753, 760 (1995) (Scalia, J.).6

“[H]istory shows that speech is suppressed when

either the speaker or the message is critical of those

who enforce the law.” Gentile v. State Bar of Nev.,

501 U.S. 1030, 1051 (1991). The actions of the

Indiana bar here arguably go beyond even

censorship of religious speech, invading the very

sanctum sanctorum of religious thought and belief

itself.

In Gentile, this Court counseled that

“disciplinary rules governing the legal profession

cannot punish activity protected by the First

Amendment.” Id. at 1054 (emphasis added). A

6 According to a recent news report, even news about

government censorship is itself covered up. See Tim Graham,

Networks, Major Papers Skip State Department Censorship of

Fox News Q&A Video, MRCNEWSBUSTERS, May 11, 2016, 8:27p.m., available at http://newsbusters.org/blogs/nb/tim-

graham/2016/05/11/jen-psaki-gets-psnipped (last accessed May

12, 2016).


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fortiori, the legal profession cannot punish mere

thoughts protected by the First Amendment. Yet

that is what the record suggests Respondent has

done to Mr. Brown. This discriminatory treatment

sets a dangerous precedent that this Court should

interdict.

CONCLUSION

For the foregoing reasons, the Court should grant

the writ and address the important issuespresented.


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Respectfully submitted,

Thomas L. Brejcha Stephen M. Crampton

Jocelyn Floyd Special Counsel,

Thomas More Society Thomas More Society

19 S. LaSalle Street Counsel of Record

Suite 603 P.O. Box 4506

Chicago, IL 60603 Tupelo, MS 38803

ph: 312-782-16803 ph: 662-255-9439

[email protected]

May 16, 2016

Documents

Thomas More Society Amicus - Brown v. Ind. Bd. of Law Examiners