Bill Moyers got it exactly right.
You don’t see that statement often in these pages, so allow me
to clarify: Bill Moyers nailed it when he said, “Ideologues embrace a worldview that cannot be
changed because they admit no evidence to the contrary.”
Moyers wasn’t thinking of the ACLU when he said that. However,
when it comes to the ideologues advancing the ACLU’s gay-rights
agenda, it is literally true. An ethics complaint alleges that an
ACLU attorney violated conflict of interest rules in two Arkansas
gay-rights cases, and suggests that the attorney “actively
sabotaged” her client’s case by refusing to admit evidence that
might call the ACLU’s agenda into question.
The ACLU’s Lesbian and Gay Rights Project has a strategy of
bringing what it calls “impact” lawsuits around the country, with
the ultimate goal of “changing the way people think,” or as it
summarizes on its website: “Don’t Just Sue the Bastards—Do
Something Useful.” That notion encapsulates its contempt for
traditional values pretty well; in its world, any opposition to its
agenda is “manufactured by a small but powerful group
of anti-gay extremists. Wrapping themselves in cloaks of ‘family’
and ‘values,’ these groups are spending tens of millions of dollars
to confuse, distort and subvert the public debate.”
Unfortunately, the ACLU project’s disdain for the Bastards it is
suing — in these cases, Arkansas — has led the ACLU’s attorneys
right off the deep end. They have forgotten fundamental rules of
legal ethics, and they have smeared an expert witness as a
religious fanatic in an effort to suppress the evidence they were
afraid he might present.
CONFLICT OF INTEREST RULES are pretty basic elements of lawyering.
You can’t represent opposing parties unless both of them give you
written consent, and maybe not even then. As with its decision to secretly collect information on its
donors, this is behavior that the ACLU would condemn in less
enlightened institutions. Just a suggestion of conflict
attached to Justice Scalia’s duck hunting trip with Dick Cheney was
enough to start the Left’s hounds baying for weeks. But Arkansas
attorney and ACLU member Kathy Hall stands accused of far more
egregious offense.
According to the ethics complaint, at the same time Hall
defended the Arkansas Child Welfare Agency Review Board (CWARB)
against an ACLU lawsuit in the case of Howard v.
CWARB, she also served as co-counsel for the ACLU in
a case against an Arkansas school board — McLaughlin v.
Pulaski School District.
The two cases were not unrelated. In McLaughlin, Hall
worked on behalf of the ACLU to sue a school district for
restricting a gay teenager’s freedom to speak about his
homosexuality. In Howard, Hall opposed the ACLU, defending
the CWARB’s policy of not allowing gay couples to serve as foster
parents.
Whether Ms. Hall liked CWARB’s policy or not, her duty was to
defend her client and to disclose any conflicts of interest. (James
Balcom, chairman of CWARB, confirmed that he didn’t learn of Hall’s
representation of the ACLU until the trial was nearly over, and
only then from a witness rather than from Ms. Hall.)
Here is Ms. Hall’s response to my inquiry about the complaint
and the suit against her:
As an attorney, my job is to argue for my client. I
firmly believe that every one, both sides to a case, has a right to
zealous representation. When I present a case for my client, I
represent the client’s interest to best of my ability-regardless of
my personal opinions.
Why didn’t the ACLU speak up about Ms. Hall’s likely conflict of
interest, as it ought to have done? It’s not like its top brass
didn’t know who she was. Two of the ACLU’s lawyers opposing Ms. Hall and the CWARB were James
Esseks, the litigation director of the ACLU’s national Lesbian and
Gay Rights Project, and Leslie Cooper, a staff attorney for the
ACLU’s Lesbian and Gay Rights Project.
Their silence is especially curious, since Ms. Hall’s ACLU
co-counsel on the McLaughlin case were…Leslie Cooper
and James Esseks, of the ACLU’s Lesbian and Gay Rights
Project. (Scroll to the bottom.)
NOW IMAGINE THE KERFUFFLE had a conservative lawyer, say a
member of the Federalist Society, not only kept quiet about a
conflict of interest, but then refused to ask her sole expert
witness a few important questions that could have affected the
trial’s outcome — and then lost the trial. The MSM would be all
over her like pink on a pig.
Sure, lawyers have some discretion in how they’ll question a
witness. But rarely are experts so shocked at an attorney’s
questions that they sue her. That’s exactly what Kathy Hall’s
expert witness, Dr. George Rekers, has done.
Dr. Rekers, a founder of the conservative Family Research
Council, is admittedly a controversial figure. In fact Ms. Hall’s
friends and/or adversaries at the ACLU have compiled a quite
uncomplimentary “fact sheet” on Dr. Rekers which accuses him of
such sundry perfidies as being — children, avert your eyes — an
ordained Southern Baptist minister.
Dr. Rekers is especially dangerous to the ACLU’s agenda not
primarily because of his faith, but because he is also a tenured
professor of Neuropsychiatry and Behavioral Science at the
University of South Carolina School of Medicine, and author of
several peer-reviewed articles and books on child psychology. He
told Ms. Hall he was prepared to testify about several scientific
studies that could support CWARB’s policy. (I have seen the notes
Dr. Rekers prepared for trial, and they consist of 70 pages
summarizing scientific articles — a purely clinical tract, and not
a religious one.)
However, this evidence was never introduced, both because Kathy
Hall mysteriously chose not to ask about it during direct
examination, and because a pre-trial motion barred much of it from
being introduced.
That motion was filed not by the ACLU, but by the CWARB’s
own attorney, Kathy Hall. According to an e-mail sent from Dr.
Rekers to his university colleagues, Hall
never entered any of the actual research studies into
evidence and she never handed me any of the articles on the stand.
Instead, (although she was supposed to represent the state’s
regulation) she made several motions before I got on the stand to
prohibit the entering of four or five areas of evidence I had
gathered in support of the state regulation!
Meanwhile, the ACLU attorney cross-examined Dr. Rekers by
grilling him about his personal religious beliefs about sex and
marriage.
The CWARB lost Howard. Judge Timothy Fox was not
impressed with Dr. Rekers’ testimony, noting in his decision
that
[I]t was apparent … [Dr. Rekers] was there primarily
to promote his own personal ideology. If the furtherance of such
ideology meant providing the court with only partial information or
selectively analyzing study results that was acceptable to Dr.
Rekers.
Given their failure to bring relevant testimony before the
court, and their smear of Dr. Rekers without addressing the
substance of his evidence, it looks like Judge Fox’s harsh words
about putting ideology before the evidence better describe the
lawyers of the ACLU’s Lesbian and Gay Rights Project.
One concern about the ACLU’s aggressive attempts to discredit
Dr. Rekers’ testimony is the implication that people of strong
religious faith would never be allowed to testify on their subjects
of professional expertise. They alleged a fundamental conflict
between Dr. Rekers’ private religious beliefs and his ability to
tell the truth in court on subjects of religious significance. The
irony is pretty staggering: even as the ACLU made this argument, it
knew (I suppose I should say or should have known) quite
well that one of the lawyers in the courtroom shouldn’t have been
there because of a glaringly apparent conflict, and it did nothing
about it. Who are the real zealots here?
Gay adoption and foster parenting are divisive issues, but this
story isn’t ultimately about gay adoption or even legal ethics.
It’s about the ACLU putting its agenda above the rules, something
even partisans on both sides ought to condemn.
Arkansas’ CWARB has appealed the Howard decision, and
it sounds like it has grounds for a new trial to be granted. I
would be fairly optimistic, except that the attorney handling its
appeal is…
Why, of course: Kathy Hall.
