User:Bowencauselawyer/sandbox/Cause Lawyering

Overview

The term cause lawyering is exactly what it sounds like, lawyering for a cause. While it is difficult to put an exact definition to cause lawyering, one author has tried to give it some understanding, "[a]t its core, cause lawyering is about using legal skills to pursue ends and ideals that transcend client service—be those ideals social, cultural, political, economic or, indeed, legal." Cause lawyering can occur in practically all fields of the law—whether it is environmental, human rights, property rights, etc.

There are four (4) ways to approach cause lawyering:

1. Individual representation;
2. Impact litigation;
3. Institutional change; and
4. Political empowerment, which focuses less on system and more on groups.

Cause lawyers are often those with an extreme passion or drive to change a moral or political issue by way of the law; it requires a commitment to a cause, which makes this type of lawyering different than conventional lawyering. In ordinary representation, lawyers do not “choose a side,” however in cause lawyering there is typically a moral or political commitment that includes taking sides in some matter of policy or law and then choosing a client which advances that goal.

Cause lawyering allows people to harmonize their personal beliefs with their work. This type of lawyering gives you control by letting you choose clients and not letting them choose you. Cause lawyering can be thought of as serving the cause and waiting for the right client.

Cause lawyering is not without its issues; it can raise expectations for selective persons and is an expensive way to make change with little pay involved for the cause lawyer. Cause lawyering can also leave incomplete remedies for individuals; for example, a student attending school during the “separate but equal” era may wish to simply attend their neighborhood school for a music program, but once a cause lawyer has picked up the case it can turn into a new school built for all students to equally attend. So while that student’s remedy is a major change in the law, that student is still left with an incomplete remedy of attending their neighborhood school.

Cause lawyers use the law as a means of social change. Brown v. Board of Education was the first major cause lawyering case. Brown is also referred to as a “test case.” Test cases are legal actions brought to undermine current law and set a precedent for new law. Brown was a deliberate action brought to undermine “separate but equal” laws in place at the time. In Brown, the United States Supreme Court found it was unconstitutional to have state laws with separate public schools for black and white students. Thurgood Marshall, a cause lawyer, fought to desegregate the school system and did so to achieve a goal, not for the money.

Cause lawyering is an important way to achieve a change in the law. Without cause lawyers, many people would fall through the cracks, especially those belonging to a marginalized group; these lawyers give a voice to those clients who may not normally be heard or represented by a lawyer.

Current Legal Issues in Cause Lawyering

1. Elder Law
2. Environmental Law
3. Marriage Equality

1. Elder Law

The population of older adults (those age 65 and older) has been growing at a rapid rate. According to the latest census data, from 2010, this population grew by nearly 10% from 2000. Despite the fact that this cross-section of the population has grown, there has yet to be an elder rights movement in this country. However, that is not to say that there is no work being done on behalf of older adults. To say such could not be further from the truth.

Elder law as a practice area is one of the fastest growing areas of law, namely through counseling and drafting to plan for the later-in-life needs of older adults. By using devices such as trusts, living wills, and powers of attorney, among others, elder law attorneys empower older adults to maintain power over various aspects of their lives for longer periods of time. Despite the fact that many elder law attorneys are preserving the rights of older adults into the future, most elder law attorneys and the organizations advocating on behalf of older adults do not recognize civil rights as part of their practices or missions.

This is precisely where cause lawyers can play a critical role. By properly naming and framing the issues that face older adults, cause lawyers can raise awareness of potential violations of older adults’ civil rights and encourage older adults to work on their own behalf. Another area in which cause lawyers can play a critical role is in impact litigation. The goal of using impact litigation is to set a legal precedent to attack programs that undermine older adults' rights. In this role, lawyers fill the critical role of selecting cases that would be proper to create reform.

As this cross-section of the population continues to grow, it stands to reason that it will become more likely that an elder rights movement will emerge. After all, private practice attorneys practicing elder law seem to be preserving the rights of older adults whether they realize it or not. The missing ingredient, as mentioned above, is a proper naming and framing of the issues facing older adults so that a movement can be cemented.

2. Environmental Law

The development of laws to protect and preserve the environment can be traced back to the early 1600’s. A person could be charged with the tort of nuisance if there was harm to the land. In 1610, William Aldred claimed that his neighbor had erected a pig sty too close to the vicinity of his home, making it unbearable to live in. In Aldred, the court ruled that Aldred was correct in asserting that the stench was enough to deprive him of his property and was therefore a violation of his rights.

In 1970, the National Environmental Policy Act (NEPA) was passed to establish policy for the protection of the environment and guide federal agencies in charge of this protection on the law’s implementation. In doing so, these federal agencies are directed to administer environmental reviews when issuing permits which actions could potentially have an adverse impact on the environment.

During the same year, a group of lawyers, seeking to ensure the viability of the Act, united to create the National Resource Defense Council (NRDC). Their mission is to protect the air, land, and water from the forces of pollution and corporate greed. Over the years, NRDC had argued many cases that sought to protect some form of the environment. The most notable, the Chevron case, established the standard of review that should be applied by a court to a government agency’s own reading of a statute that it is charged with administering. The case derived from the Reagan administration’s decision to implement new environmental restrictions that some perceived to give more power to big plants. The court ruled in favor of NRDC and developed what is now called the “Chevron two-part test.”

Currently, Congressional Republicans are attempting to limit some of the current restrictions and policies in place to protect the environment as a whole.

3. Marriage Equality

Overview: Historically, marriage has been defined as a union between one man and one woman. Same-sex marriage – a marriage between two people of the same sex has redefined the meaning of marriage. The debates that same-sex couples should be entitled to the same rights as opposite-sex couple raise a number of issues in political, social, human rights, civil rights and religious areas around the world, and many proponents believe that the legalization of same-sex marriage is essential to achieve the equality and dignity of marriage, and that same-sex couples should be afforded the same protection as opposite-sex couples in terms of estate planning, financial arrangements, inheritance and hospital visitation rights. Although, same-sex couples were not labeled strictly as “married”, this status equated as marriage significantly. In 2000, Netherlands became the first nation in the world to legalize same-sex marriages. In addition to Netherlands, there are currently 17 countries in the world where same-sex marriage is legal, and they are Africa, Argentina, Belgium, Brazil, Canada, Denmark, France, Spain, Scotland, Sweden, Norway, Portugal, Iceland, Uruguay, New Zealand, the United Kingdom and Luxembourg.

In the U.S., same-sex marriage laws also vary by jurisdiction, and the issues that have been discussed include whether same-sex couples should be allowed to get married as they wish, or should they hold a status other than marital status. The changes in same-sex marriage laws in the U.S. are mainly accomplished through legislatures, civil rights movements, litigations and sometimes vote.

Methods of Achieving Equality
There are two primary ways that proponents of marriage equality have worked to achieve their goals: Litigation and Legislation/Lobbying Efforts.

Litigation:

Litigation at both the Federal and State levels has been pursued. Of the 37 states, plus D.C., in which same sex marriage is legal to some degree, 21 of those states’ move toward marriage equality involved a federal court decision, 8 states’ move involved a state court decision, 13 states’ moves involved a legislative statute, 1 state’s move involved an initiative statute. Obviously, these numbers don’t total to 38. That’s because several states’ moves to marriage equality involved both legislation and court decisions. Much of the litigation has focused on recognition of same sex marriages performed in states where they are legal by states that do not recognize them or challenges to state laws that ban the marriage of same sex couples altogether. Most of the arguments have centered on equal protection and due process claims, rather than on the full faith and credit clause.

Legislation/Lobbying Efforts:

Many states have passed legislation to allow same sex marriages outright, or to allow the recognition of same sex marriages performed in other jurisdictions. To show how complicated an issue this is: Kansas allows same sex marriages, but does not recognize those marriages that were performed elsewhere. The opposite is true for Missouri, except that it is more complicated. There are 2 counties, plus the city of St. Louis that issue marriage licenses to same sex couples, but the state will also recognize those unions performed in other jurisdictions.

Specific Movements for the Cause

GLAD (Gay and Lesbian Advocates and Defenders):

GLAD works with other groups to craft legislation, recommend policy changes, and provide testimony before legislative hearings. GLAD is also involved in litigation, both in filing complaints and by filing amici curiae in support of litigants. GLAD also works to educate the public through publications and other media. Further, they work to educate individuals of their rights.

Human Rights Campaign (HRC):

According to their website, HRC is the largest civil rights organization working for equality for gay, lesbian, transgender, and bisexual Americans. HRC actively works in states to work to get legislation passed to achieve marriage equality for same sex couples. In some instances, they have placed staff members in states to help work alongside residents to organize rallies and testify before legislative committees.

Freedom to Marry:

The Freedom to Marry movement has identified a 3 step “Roadmap to Victory.” The steps identified are: (1) Win more states so a majority of Americans live in a same sex marriage state; (2) Grow public support for the freedom to marry to greater than 60%; and (3) Bring a complete end to federal marriage discrimination. According to their website, since its inception the Freedom to Marry Organization’s goal on the national stage has been to set the stage for a victory in the Supreme Court.

ACLU (American Civil Liberties Union):

The ACLU has been involved in marriage equality efforts since the first case for same sex couples in 1971. Not only is the organization involved in litigation, but it is also involved in public education initiatives. Currently, the ACLU is working to ensure that all states allow same sex couples the right to marry and that regardless of where the marriage is performed, the union will be recognized.

Marriage Equality Development in the US
Same-sex couples now are allowed to marry in the following 38 states: “Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Iowa, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, North Carolina, Nebraska, New Hampshire, New Jersey, New Mexico, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Virginia, Vermont, Washington, West Virginia, Wisconsin, and Wyoming, plus Washington, D.C.” Same-sex couples are also currently able to marry in some counties in Missouri. The states are listed below in date form.

1. Massachusetts (May 2004)
2. California (June 2008 & June 2013)
3. Connecticut (Nov. 2008)
4. Iowa (April 2009)
5. Vermont (Sept. 2009)
6. New Hampshire (Jan. 2010)
7. New York (June 2011)
8. Washington (Dec. 2012)
9. Maine (Dec. 2012)
10. Maryland (Jan. 2013)
11. Delaware (July 2013)
12. Rhode Island (Aug. 2013)
13. Minnesota (Aug. 2013)
14. New Jersey (Oct. 2013)
15. Hawai'i (Dec. 2013)
16. New Mexico (Dec. 2013)
17. Oregon (May 2014)
18. Pennsylvania (May 2014)
19. Illinois (June 2014)
20. Utah (October 2014)
21. Oklahoma (October 2014)
22. Virginia (October 2014)
23. Indiana (October 2014)
24. Wisconsin (October 2014)
25. North Carolina (October 2014)
26. Nevada (October 2014)
27. Colorado (October 2014)
28. West Virginia (October 2014)
29. Idaho (October 2014)
30. Arizona (October 2014)
31. Alaska (October 2014)
32. Wyoming (October 2014)
33. Kansas (November 2014)
34. Montana (November 2014)
35. South Carolina (November 2014)
36. Florida (January 2015)
37. Alabama (February 2015)

On the other hand, there still are 13 states that have laws or constitutional amendments denying same-sex marriage, and these states are: “Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Missouri, Mississippi, North Dakota, Ohio, South Dakota, Tennessee, and Texas.”

Marriage Equality Development – Cases

• Loving v. Virginia, 388 U.S. 1 (1967)

This case is included to offer a historic perspective of marriage equality. While the issue in this case involved the right to marry a person of a different race, and the Supreme Court ultimately struck down as unconstitutional bans on marrying others of a different race, the case has been cited recently in opinions striking down same-sex marriage bans by stating that the constitutional rights of persons must be respected in laws that seek to define or regulate marriage. The Court unanimously struck down state law bans of marriage between people of different races. The unanimous opinion stated that marriage is a “basic civil right of mankind.”

• United States v. Windsor (Striking Down Parts of DOMA)

In Windsor, plaintiff Windsor and her partner of 44-years, Ms. Spyer, got married in Canada and returned to New York in 2007. In 2009, Spyer passed away and left Windsor a sizable estate. When Windsor tried to claim a federal tax exemption for her inheritance (under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes), the federal government refused to recognize their marriage on the basis of the definition of marriage limited to those unions between a man and a woman contained in the Defense of Marriage Act (DOMA). As a result, the federal government taxed Windsor’s inheritance from Spyer as though they were strangers.

Windsor brought an action against the federal government challenging the constitutionality of DOMA Section 3. Windsor asserted that DOMA Section 3 violated her due process rights of the Fourth Amendment, because her same-sex marriage was treated differently from marriages between opposite-sex couples.

The Supreme Court of United States ruled that DOMA Section 3 violates equal protection by denying married gay couples recognition under federal law. Justice Kennedy further wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person-hood and dignity.”

This case signals a big victory in federal level.

• Wright v. Arkansas (Local Perspective)

On July 2, 2013, private lawyers filed a lawsuit in state district court on behalf of over ten same-sex couples challenging Amendment 83 of the Arkansas Constitution. Amendment 83 provides, “Marriage consists of only the union of one man and one woman.” The plaintiffs in Wright argued that laws banning same-sex marriage in Arkansas violated their privacy right, due process and equal protection. Among the plaintiffs, some were married in other states or countries, and some were not but wished to marry in Arkansas.

On May 9, 2014, the presiding judge granted plaintiff’s motion for summary judgment and struck down the Arkansas same-sex marriage ban. In his opinion, Judge Piazza wrote, “The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection . . . The difference between opposite-sex and same-sex families is within the privacy of their homes.”

Piazza, in his opinion, even referred to Mildred Loving, stating, “It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples.”

On May 12, 2014, joined by a number of Arkansas county clerks, Arkansas Attorney General Dustin McDaniel petitioned the Arkansas Supreme Court for an emergency stay on Judge Piazza’s ruling. On May 16, 2014, the Arkansas Supreme Court issued an emergency stay as the state’s appeal proceeds, and county clerks were no longer allowed to issue same-sex marriage licenses. Currently, the case is pending before the Arkansas Supreme Court.

Conclusion

With the help of cause lawyers, 37 states and the District of Columbia have allowed same-sex couples the freedom to marry.

On April 28, 2015, the United States Supreme Court will hear oral arguments on a group of four consolidated cases regarding same-sex marriage. These cases are expected to shape the national scope of marriage equality. Supporters of LGBT equality also have a chance to join an unprecedented public brief to the Supreme Court.

However, even though the Supreme Court granted certiorari to hear the marriage equality cases, there is no requirement for the Court to answer the two framed questions either in the affirmative or in the negative. The Court may only clarify parts of the whole issue.

It is important to have cause lawyers who represent seemingly unpopular areas of the law. Many large firms will not join in on the marriage equality debate for fear they will lose clients.

If not for cause lawyers fighting for the rights of unpopular and marginalized individuals, we may never have had the opportunity to hear and promote the arguments for marriage equality.

Official Report Bibliography

Adam Liptak, The Case against Gay Marriage: Top Law Firms Won’t Touch It, http://www.nytimes.com/2015/04/12/us/the-case-against-gay-marriage-top-law-firms-wont-touch-it.html?_r=2 (Apr. 11, 2015).

Adam Polaski, Arkansas Judge Strikes Down State Ban on Marriage for Same-Sex Couples, http://www.freedomtomarry.org/blog/entry/Arkansas-judge-rules-in-favor-of-the-freedom-to-marry-for-same-sex-couples (posted May 9, 2014, 4:59 p.m.).

Aldred’s Case [1610] 9 Co Rep 57b [1610] 77 ER 816.

American Civil Liberties Union, LGBT Relationships, http://www.aclu.org/issues/lgbt-rights/lgbt-relationships?redirect=lgbt-rights/lgbt-relationships (accessed Apr. 12, 2015).

Anthony Moujaes, Supreme Court Sets April Date for Marriage Equality Cases, http://www.ucc.org/supreme_court_marriage_equality_03062015 (Mar. 16, 2015).

Ark. Code Ann § 9-11-208(b) (Lexis 2014).

Brown v. Board of Ed. Of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954).

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Cindy Carcamo, Minnesota Becomes 12th State to Embrace Same-Sex Marriage, http://articles.latimes.com/2013/may/14/nation/la-na-nn-ff-minnesota-gay-marriage-20130514 (May 14, 2013).

Dean John DiPippa, Class Lecture, Introduction to Cause Lawyering (UALR Bowen School of Law Jan. 27, 2015).

Freedom to Marry, About Freedom to Marry, http://www.freedomtomarry.org/pages/about-us (accessed Apr. 12, 2015).

Freedom to Marry, History and Timeline of the Freedom to Marry in the United States, http://www.freedomtomarry.org/pages/history-and-timeline-of-marriage (updated Jan. 16, 2015).

Freedom to Marry, Roadmap to Victory, http://www.freedomtomarry.org/pages/roadmap-to-victory (accessed Apr. 12, 2015).

Freedom to Marry, States, http://www.freedomtomarry.org/states (accessed Apr. 12, 2015).

Freedom to Marry, Where State Laws Stand, http://www.freedomtomarry.org/where-state-laws-stand (accessed Apr. 12, 2015).

GLAD, Our Work: Cases, http://www.glad.org/work/cases (accessed Apr. 12, 2015).

GLAD, Our Work: Legislative Advocacy, http://www.glad.org/work/advocacy (accessed Apr. 12, 2015).

GLAD, Our Work: Public Education, http://www.glad.org/work/education (accessed Apr. 12, 2015).

Human Rights Campaign, About Us, http://www.hrc.org/the-hrc-story/about-us (assessed Apr. 12, 2015).

Human Rights Campaign, Our Victories, http://www.hrc.org/the-hrc-story/our-victories (assessed Apr. 12, 2015).

Loving v. Virginia, 388 U.S. 1 (1967).

Michael Muskal, Arkansas Seeks Stay on Ruling Allowing Same-Sex Marriage, http://www.latimes.com/nation/nationnow/la-na-nn-arkansas-same-sex-marriage-appeal-20140512-story.html (posted May 12, 2014, 9:14 a.m.).

Monica Sarkar & Inez Torre, Same-Sex Marriage: Where in the World Is It Legal?, http://www.cnn.com/2015/02/10/world/gay-marriage-world/ (posted Feb. 10, 2015, 2:55 p.m. EDT).

Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982), rev’d, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Natural Resources Defense Council, NRDC: 2014 Anti-Environmental Budget Riders, http://www.nrdc.org/legislation/2014-riders.asp (last updated July 28, 2014).

Natural Resources Defense Council, NRDC: The NRDC Story, http://www.nrdc.org/about/nrdc-story.asp (last updated Feb. 2, 2015).

Nina A. Kohn, The Lawyer’s Role in Fostering an Elder Rights Movement, 37 Wm. Mitchell L. Rev. 49, 50, 64-68, 70 (2010).

Pamela K. Taylor, Marriage: Both Civil and Religious, http://www.faithstreet.com/onfaith/2009/07/31/marriage-both-civil-and-religious/3855 (July 31, 2009).

Patricia Pratt, Albany Area Real Estate and the Marriage Equality Act, Website Banned by Wikipedia (posted May 29, 3012, 7:01 a.m. MST).

Stuart Scheingold & Austin Sarat, Something to Believe In: Politics, Professionalism, and Cause Lawyering 2-3, 6-7 (Stanford University Press 2004).

Susan K. Smith, Marriage a Civil Right, Not Sacred Rite, http://www.faithstreet.com/onfaith/2009/07/30/marriage-a-civil-right-not-sacred-rite/4763 (July 30, 2009).

U.S. Census Bureau, 2010 Census Briefs, The Older Population: 2010 2, http://www.census.gov/prod/cen2010/briefs/c2010br-09.pdf (Nov. 2011).

U.S. Environmental Protection Agency, Summary of the National Environmental Policy Act, http://www2.epa.gov/laws-regulations/summary-national-environmental-policy-act (accessed Mar. 28, 2015).

U.S. v. Windsor, 133 S. Ct. 2675 (2013).

Wikipedia, Loving v. Virginia, http://www.en.wikipedia.org/wiki/Loving_v._Virginia (last modified Apr. 3, 2015, 17:52).

Wikipedia, Loving v. Virginia, “Decision,” http://www.en.wikipedia.org/wiki/Loving_v._Virginia (last modified Apr. 3, 2015, 17:52).

Wikipedia, Same-Sex Marriage in the United States, “Federal Law,” http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States (last modified Apr. 14, 2015, 23:35).

Wikipedia, Same-Sex Marriage in the United States, “In Litigation,” http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States (last modified Apr. 14, 2015, 23:35).

Wikipedia, Same-Sex Marriage in the United States, “State Law,” http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States (last modified Apr. 14, 2015, 23:35).

Wikipedia, Same-Sex Marriage in the United States, Table “States (and D.C.) with Same Sex Marriage” and Table “States with Same Sex Marriage in Part of Their Territory,” http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States (last modified Apr. 14, 2015, 23:35).

Wikipedia, Test Case (law), http://en.wikipedia.org/wiki/Test_case_(law) (last modified Dec. 17, 2013, 01:55).

Wright v. Arkansas, 2014 WL 1908815, 8 (Ark. Cir. May 9, 2014).

External links

• University of Arkansas at Little Rock, Bowen Law School; Site created by Public Service Law students. [1]