Ethicist on oaths
Update: Hello to everyone being linked here my Higher Ed. My response to the current ethicist column, as opposed to the one below from a month ago, is here.
This week Randy does a decent job on a tough question. His conclusion is correct, and one of his reasons for it is too. But I'm getting ahead of myself.
The anonymous questioner asks whether or not it is ethical for him (a third year law student) to take an oath to uphold the constitution of Ohio. He has to take such an oath to gain entrance to the bar, but the constitution includes an amendment banning gay marriage. The writer regards the amendment as, "...discriminatory and immoral and a violation of the U.S. constitution." I'm not personally convinced of the constitutional claim (though I am hopeful, especially since Jack Balkin just posted sketches of a couple of rather persuasive constitutional arguments), but I agree with the first two. Also, I'm unclear as to why the writer thinks it's only a problem with the Ohio constitution. The Ohio oath says (Rule I Section 8(a)), "I, ____________________, hereby (swear or affirm) that I will support the Constitution and the laws of the United States and the Constitution and the laws of Ohio..." If the writer is really worried that opposition to the gay marriage amendment is a violation of the oath, it seems to follow that opposition to any law of Ohio or the United States is a violation. That's neither here nor there though.
The Ethicist responds by pointing out a slew of rather loopy amendments which are included in state constitutions, and that the version of the U.S. constitution which Lincoln swore to uphold as President had multiple pro-Slavery provisions. From this, Randy concludes that the oaths "... are not endorsing every distasteful feature of these Constitutions. Rather, you are making a general pledge to uphold the rule of law and constitutional government. (So don't let me catch you launching some kind of insurrection.) And note that these Constitutions include the means by which they may be amended."
I think the last point about the means of amendment is important. But the earlier one about Lincoln and odd constitutional provisions doesn't get you much, it's wholly possible that Lincoln violated his oath and it's just question begging to suggest that because constitutions have odd provisions one isn't agreeing to support them, the issue is whether or not one swears to uphold the whole of the constitution. It's also not totally clear to me that the ethical issue is the degree to which one is bound by the oath, so much as whether or not one is tacitly approving of discrimination by not calling attention to this amendment while taking the oath. Randy basically punts on that question, though he does give the useful piece of advice that one could, "[take] the bar in a nearby state that has a reciprocal arrangement with yours but lacks the offensive amendment."
I think the conclusion that taking the oath is ethically fine is correct. I think this because all one is taking an oath to do is to avoid extra-legal opposition to the laws and Constitution. The oath taker is not forswearing any legal means to change the content of the law. All members of the Senate (and other Federal level elected and appointed officials) take a similar oath, saying, "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..." Yet it would be absurd to say that by taking this oath they are giving up their constitutional power to amend the Constitution. It is absurd, but not because it is impossible that every time the Senate has acted to amend the Constitution they have violated an oath. Rather, the problem is that the Senate wrote the oath themselves, without ever intending to give up their ability to amend the Constitution. Since there are multiple possible meanings which the words of the oath will bear, it is worthwhile asking what meaning the people who wrote the oath and who take the oath meant it to have. Since they did not mean it to have the effect of opposing changes to the Constitution, it follows by analogy that the same language as applied to state and federal laws and to state constitutions does not create any obligation to support the laws exactly as they currently are, but rather an obligation to support law in general. I don't really like that I used an intentionalist argument here, since I think intentionalism is not the best form of legal interpretation, but I don't want to write any more.
This piece, besides the obvious source material from Randy Cohen, was inspired by some of Will Baude's musings from last year about the Oath of Citizenship which immigrants take. Though he comes to different, extremely textual, conclusions than I do.
Update: After discussion with a professor, I found out that the proposal about taking the bar in a state with a reciprocal agreement won't actually help. Upon entry into the bar of another state, even if you have are being waived in, you still must take the oath in that state. I have made other small changes to this post in light of my discussion.