Utah Bar Journal

So. We can all feel good about ourselves, right? Or can we?

The Pledge, ironically, at least to me, in a footnote, defines "attorneys of color." Curiously, at least to me, "color" is defined narrowly. (What about those people of "color" that don't meet the definition?) Make no bones about it, The Pledge, by its own terms, creates a "preferred" class for "attorneys of color." Having created a "preferred" class, The Pledge then, in Soviet, Kafkaesque reasoning, would have participants "adopt a policy against discrimination at any level . . ."

The Pledge is our version of the preference policies and "Diversity" driven philosophy at issue in Grutter v. Bollinger, 539 U.S. 306 (2003). Let me make it perfectly clear, as our 37th President liked to say, I am for "Diversity." Diversity is a good thing, not a bad thing. But diversity should be about inclusion, not exclusion. Creating classes is about exclusion. Creating preferred classes is exclusive by definition.

Furthermore, diligence, tenacity, persistence, self reliance, and intellectual firepower are also good things - and I am for them, too. Of course, I am also for Fatherhood, The Love of My Life, and The Runnin' Utes. But who makes diligence, dedication, tenacity, persistence, self reliance, intellectual firepower, Fatherhood, The Love of Their Life, or The Runnin' Utes the goal of their policy?

A diverse Bar should be a natural consequence of the intellectual richness and ever expanding breadth of the practice of law. A concept like "Diversity" should not be the end, or even a means to the end. "Diversity" is good, but it is wrong to make "Diversity," in and of itself, a goal. "Wrong" in what sense, you say? Wrong in the sense of the stigma it casts, and wrong that it presupposes that the object of its ill-advised favor needs it. Wrong in the sense that it presupposes that I, a white man, won't do the "right thing" without it. Wrong in the sense that it implies that "Diversity" is more important than equal protection under law, and that "Diversity" is more important than commonly held community beliefs that merit, diligence, dedication, tenacity, persistence, self reliance, and intellectual firepower matter. There is a great scene in "Heaven Can Wait" where Warren Beatty asks his lawyer, Charles Grodin, "Wouldn't that be wrong?" to which Grodin replies "Wrong in what sense?" to which Beatty answers "You know, just plain bad."

Most of all, I am troubled, discouraged, and saddened that there is no meaningful social dialogue on this or related issues. I've been fervently hoping someone else would at least comment. The silence is deafening. I rest my case. Advocating "Diversity" has become the equivalent of the McCarthy era "loyalty" pledges. The very culture of "Diversity" stifles unhindered discussion and investigation of its validity, if any. "Diversity" fosters and reinforces a culture that is hostile to democratic dialogue. Does The Pledge "work" in any measurable way? Or, is it counter productive? Is it at least possible that it could be a negative thing? Does it thwart the very objectives it seeks? Is there a better way? Are there situations where ÒDiversityÓ has been unfair?

For example, suppose the availability of one job with competing applicants. Is The Pledge "ok" if it results in a job for a member of a preferred class, but the loss of that job for a single mother of 4 who has worked her way through law school with the goal of a job that gives her children a better life? Or, a person of "color," but not a defined color. Or, "Farm Boy," educated in a not very good public school, first in his family to graduate from anything, never having received any national advantage, except, of course, the wonderful opportunity of being called upon to fight his country's necessary and unnecessary wars?

Difficult and unpleasant questions, these, but ones insulated from examination by the "Diversity" culture, ones not addressed by a "feel good" pledge. Imagine questioning your Bar leaders, or UTLA's leaders, or the leaders of any firm that has adopted The Pledge, about who does, and does not, benefit from The Pledge. (Does anybody keep track?) Merely asking questions, expressing dissent from the party line, brings charges of being "Diverse" insensitive, if not outright racist. Instead, back room, low voice, side of mouth comments and cynicism result, along with the charges of insensitivity and racism.

We have become so hyper-sensitive about color, gender, and religion that we have stopped talking to each other about it in any meaningful way, if at all. As for me, as I look at the signature line on The Pledge, I canÕt help, for the life of me, thinking of Sir Thomas More.

The story is, I hope, well known. Greatly oversimplified, Henry VIII wanted to dump his wife for the divine Ms. Boleyn. The King greatly desired Thomas More's blessing. Unfortunately for all, especially More, the desired blessing took the form of requiring More to state that he believed several things that he did not believe, i.e., that an Act of Parliament took priority over the Law of God, that the King could bestow Supremacy of the Church, and that the immunity promised the Church in the Magna Carta and in the King's own coronation oath could be ignored. Even worse, for More, it required him to state that he believed these things which he did not believe under oath. This More, who embraced the full, rich enjoyment of life, and who surely knew and understood the consequences of refusing, refused to do. To More, life was valueless if he disclaimed his heart by taking an oath he did not believe. As More put it, " . . . first men will disclaim their hearts and presently they will have no hearts.' (Heady stuff, eh? Brilliant. Moving. I've done a lot of bad stuff, but God help me if I disclaim my heart.)

More: "I insult no one. I will not take the oath. I will not tell you why I will not."(Merely stating why he would not take the oath would have, itself, constituted treason.)

Norfolk: "Then your reasons must be treasonable."

More: "Not 'must be'; may be."

Norfolk: "It's a fair assumption."

More: "The law requires more than an assumption. The law requires a fact."

More: "Some men think the earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign."

More felt so strongly that his life was valueless if he took an oath that he did not believe that he chose beheading and became "A Man for All Seasons," a play by Robert Bolt, a great read that you can easily scarf down in an evening, then later a movie. Paul Scofield won both a Tony and an Oscar for his portrayal of Sir Thomas More. Has that ever happened before or since?

I love sports analogies: I couldn't carry More's jock strap. Let's face it - I am past the apex of a mediocre career. If pushed, I will take The Pledge. Meanwhile, I hope for the day when my own, private pledge, without reservation, in my own heart and mind and soul, that I "will not deny to any man (or woman) either justice or right" (remember this from the Great or "Magna" Charta of June 15, 1215 at Runnymede on the Thames?) will suffice. I hope for the day of truly equal opportunity, racial, gender, and religious harmony, and widespread prosperity, liberty and happiness. I also hope for the end to banal "Diversity" pledges, not to mention hoping for Fatherhood, The Love of My Life, and The Runnin' Utes.