Case dismissed :: MA legal community scoffs at bar exam lawsuit

Given that he flunked the Massachusetts bar exam, Stephen Dunne technically isn't even a lawyer. But the old adage that a lawyer who represents himself has a fool for a client certainly seems to apply when one considers that Dunne is representing himself in a federal lawsuit alleging that he failed the test for refusing to answer a question related to same-sex marriage, in violation of a number of his constitutional rights. For good measure, the suit also challenges the constitutionality of allowing same-sex couples to marry in Massachusetts in the first place. Needless to say, a number of legal professionals have reacted to the suit with a mixture of embarrassment, disbelief and outright scorn.

Here's a sampling:

"This is why there's lawyer jokes," said Mass. Lesbian and Gay Bar Association co-chair Charles Wagner.

"I hope he didn't go to Northeastern," mused Roger I. Abrams, the Richardson Professor of Law at Northeastern University School of Law and the school's former dean. "The name doesn't sound familiar."

Even if he did attend Northeastern, Dunne "would have gotten so much of same-sex marriage issues here he would have dropped out in the first year," Abrams chuckled, noting that the Goodridge lawsuit was litigated by Mary Bonauto, a Northeastern law school alum, with help from students at the school. "We celebrate it," he said. "So, tough." Dunne did not name the law school he attended in his complaint, although he did describe it as "a prestigious Boston law school."

"It's practically unreadable," said Sarah Wunsch, a staff attorney at the ACLU of Massachusetts, of Dunne's complaint. "And it's probably a good example of why he should not have passed the bar exam."

"I don't think you have a constitutional right to decide what your test questions will be," said Lee Swislow, executive director of Gay and Lesbian Advocates and Defenders (GLAD).

Dunne, who listed a Boston post office box for an address on the complaint, could not be reached for comment for this story.

News of the lawsuit also ignited discussion in the blogosphere, where a number of lawyers have weighed in on the case.

"His complaint is a 44-page sometimes rambling exercise in regurgitation of everything that Bill O'Reilly tells his viewers to say," wrote law professor Marc J. Randazza in a recent post on his blog, randazza.wordpress.com. "I can see why Dunne couldn't pass the bar exam," added Randazza, who teaches at Florida's Barry University School of Law. (Randazza gets props for his headline homage to the Boston accent: "Fail the bah? Blame the queeahs!)

Over at his blog CrabLaw.com, Bruce Godfrey, a Maryland attorney, made this observation: "[By] far the best evidence that this fellow is a moron is the fact that he is representing himself on a $10 million suit against the court system itself. Apparently even the religious right's public interest lawyers (the ACLJ [American Center for Law and Justice], Rutherford Institute, etc.) wanted no piece of this stupidity." In his original complaint, Dunne originally sought $10 million in damages. He has since amended the complaint to reduce that figure to $9.75 million.

John Schochet, a Seattle attorney/blogger at JohnSchochet.blogspot.com, offered Dunne this advice: "If you ever get around to retaking the Massachusetts bar exam, answer the questions based on what the law is, not what you think the law should be. You're welcome to advocate changing Massachusetts's marriage law, or you're welcome to move to one of the 49 states that still prohibits same sex-marriage and take the bar exam there, but if you take the bar in Massachusetts, answer the questions based on what the law is, whether you like it or not."

Then there are the scores of blog posts by less authoritative commentators, with headlines like "Wanker of the Day," "Dipwad of the year award," "Loser!" and the pointedly honest, "I may be dumb, but at least I'm not an asshole!", penned by "Nutters," a blogger at BarBringItOn.blogspot.com who apparently has failed the bar exam himself. Rather than file suit, however, Nutters is studying to take the test again.

Dunne is suing the five-member Massachusetts Board of Bar Examiners, and the Massachusetts Supreme Judicial Court (SJC). He specifically names the four justices who ruled in favor of same-sex marriage in the 2003 Goodridge decision - Chief Justice Margaret Marshall and Justices Judith Cowin, John Greaney and Roderick Ireland. According to the lawsuit, Dunne narrowly failed the exam with a score of 268.866; he needed to earn at least 270 points to pass. Dunne's complaint states the defendants "engaged in constitutionally invidious discrimination" by forcing him to answer an "inappropriate" bar exam question that required him "to write an affirmative response explicitly and implicitly, accepting, supporting and promoting homosexual marriage and homosexual parenting ... as a prerequisite to the practice of law" in Massachusetts.

As the lawyer for all state agencies, Attorney General Martha Coakley will represent the defendants in the lawsuit. But Harry Pierre, a spokesman for Coakley, referred questions about the suit to Joan Kenney, the SJC's public information officer. Kenney declined to comment on the lawsuit stating that, "it would be inappropriate for the court to comment because they are a party to the suit." Mass. Board of Bar Examiners Chairman William F. Kennedy also did not respond to requests to comment on the suit or on how the bar exam is scored.

Dunne's complaint does not elaborate further on the details of the question, nor does he specify exactly when he took the test. But according to his complaint, he initiated proceedings to take the Mass. bar exam in November of 2006 and learned of his failure in May 2007, so it's safe to say Dunne took the two-day test on Feb. 28 and March 1, the only time it was offered between November and May, according to the Mass. Board of Bar Examiners website.

A copy of the essay questions for that test period is posted on the Mass. Board of Bar Examiners website. The offending question concerned the legal rights of Mary and Jane, married lesbian lawyers with two children between them, upon their divorce due to infidelity and domestic violence (see "The question in question," below).

Among many other allegations, Dunne accuses the defendants of using the question as a "disguised mechanism to screen applicants according to their political ideology," thus they are discriminatorily persecuting him and oppressing his "sincere religious practices and beliefs." He further argues that being required to answer a question that affirmatively acknowledges gay marriage and gay parenting "is tantamount to forcing the Plaintiff to accept 'Defendants' [sic] irreligion of Secular Humanism." Each of those actions, Dunne complains, violate his First Amendment rights to freedom of religion.

Dunne's critics, however, point out that there are plenty of laws that may offend bar examinees. "Having to answer a question on a bar exam that you don't like or find offensive doesn't constitute a violation of any recognized constitutional right," said Wunsch. Dunne was "not being asked to utter any oaths or affirmations that are against his religion," she added. "He's simply being asked to apply Massachusetts law to a set of facts."

Wagner, for instance, recalls that when he took the bar exam back in the mid-1990s, he was faced with a question about the U.S. Supreme Court ruling that upheld the right of South Boston's St. Patrick's Day Parade organizers to exclude LGBT groups from marching. "And of course that made me want to throw up in my shoes," said Wagner. "But I had to write about it."

And since the right of same-sex couples to enter into civil marriages in the United States is distinct to Massachusetts, Wagner observed, "it shouldn't have been rocket science that it was going to be on the bar exam." And had Dunne chosen to respond to the question, he was certainly free to state his opposition to the SJC's decision in the Goodridge case. "He can put in his answer that he has a problem with the court's decision," said Abrams, who noted that when he took the bar exam in 1970 he expressed his disagreement with matters of law that arose on the test.

Certainly, Dunne was not shy about expressing his disagreement with the Goodridge decision. Among some of his complaints: "Defendants enactment, reliance, and enforcement of [Goodridge] is contrary to the United States Constitution and must be preempted to maintain national peace and harmony;" "Plaintiff contends that the institution of marriage transcends judicial intervention, and its definition should not be made the subject of political experimentation in state laboratories." As for his general feelings about homosexuality, Dunne had this to say: "Plaintiff contends that neither Science nor Religion recognizes homosexuality as immutable; homosexuality is a voluntary human behavior that is changeable. Bisexuals voluntarily engage in relations with members of both sexes by choice, not by genetic predisposition. Societal recognition and perpetuation of rampant homosexuality is neither prudent nor wise."

Abrams noted that Dunne isn't the first person to sue after failing a bar exam. "There are lots of problems with bar examinations. I have problems with them," said Abrams. For one thing said Abrams, "I do know as a matter of practice and fact that they discriminate as much as other standardized tests." Examinees, said Abrams, have filed suit claiming problems with the way the test was administered or graded in addition to claiming the exam itself was discriminatory in nature. Nonetheless, Abrams said of Dunne's lawsuit, "You're treating this more seriously than it deserves to be treated. This is nonsense."

Nonsense or not, Dunne's lawsuit fits in with a growing tendency by the right wing to cloak its opposition to legal protections for LGBT people in the language of civil rights. "I think that these kinds of claims are sexy and appealing and demonstrate the extent to which how over the last 20 years the 'conservative family values' people have repackaged their position as somehow being rooted in civil rights," said Wagner. Just this week, for example, a coalition of conservative Christian organizations staged a press conference and rally in Washington, D.C., in opposition to the LGBT-inclusive hate crimes prevention bill that is expected to be taken up shortly in the Senate. A press release sent out by Repent America, a fundamentalist organization cosponsoring the event, stated that it would "address the disturbing trend that seeks to criminalize Christianity in America. As it stands, the freedom of speech and religion of Bible-believing Christians are in jeopardy today. Left unchallenged, this dangerous development will erode America's experiment in liberty and lead to increased hostility towards followers of Christ." Closer to home, David and Tonia Parker sued the Lexington Public Schools in federal court over the use of a gay-themed book in their son's classroom, alleging that it violated their religious freedom by offering teachings about homosexuality that ran contrary to their faith. The suit was tossed out last year, a decision the Parkers have appealed.

Wagner suggested that their framing of the arguments just doesn't work. "Civil rights are about how as a society we strive to preserve and protect each other's freedoms. And it is inimical to that constitutional framework to suggest that one person's civil rights should trample another person's freedom," he said. More simply Wagner likens their arguments to "saying the Fourteenth Amendment is unconstitutional because it curtails the states' ability to discriminate against people of color, or that people should be free to be racist or people should be free to implement sexism. And that's all this is, is repackaged discrimination."

So where does Wagner see Dunne's lawsuit going? "Straight to the dismissal bin," he said.