Nice work if you can get it
I'm not a fan of The Ethicist, a column in the NYT magazine section on Sundays written by Randy Cohen. His answers often reveal a critical lack of serious thinking and substantive knowledge about the subject at hand, but much more often his answers are either restatements of the ethical judgment implicit in the letter or capitulating suggestions to do whatever you think is right. The only thinking I find myself doing when I read his columns is how many other approaches could be taken to the same question and how many are more compelling than his. Since there appear to be no qualifications necessary for this job, maybe I can get into it myself one day.
In last weekend's column, above, he addresses the question of whether a prospective member of the bar in Ohio, which recently amended its constitution to ban same-sex marriage, can ethically swear to uphold the state constitution despite his lack of support for the new constitutional provision. Cohen tells him he certainly can, which isn't an unexpected or unwarranted answer. His reasoning, however, is unhelpful and conclusory in the extreme. He says that swearing to uphold a constitution, a written document, isn't actually an endorsement of every feature of the constitution, but "a general pledge to uphold the rule of law and constitutional government." That can't be right. If it were, I could swear an oath to uphold my state constitution (as I have, as a condition of employment) and abide by any system of consistent and authoritative law of limited government I felt like. If I were writing the pledge Cohen is describing, I'd ask bar applicants to swear an oath to uphold constitutionalism or judicial integrity or something like that. Laws command respect for their content, not just their lawness.
Interestingly, California addressed a very similar question just last year, when Mayor Gavin Newsom of San Francisco married thousands of people on the basis of his belief that the restriction of marriage to opposite sex couples only was not constitutional. The state supreme court ruled subsequently that Newsom had overstepped his authority and voided the marriages he had licensed. Basically, they found that even though the mayor can hold a different opinion about the law from the executive, he cannot act on that opinion in an official capacity. Although the decision is rooted in part on specific characteristics of the state constitution, its introduction discusses generally the rule of law and separation of powers questions presented by differing interpretations of law and the differing commitments they carry. To the extent that being a practicing attorney (and officer of the court, member of the bar association, etc.) imposes duties to clients and the judiciary, those duties must be fulfilled in accordance with the laws of the state, not a general "rule of law" principle.
Now, there's a difference between what is legal and what is ethical and since Randy Cohen isn't a lawyer (nor, as it turns out, is he a philosopher) he's better off confining himself to the latter. The ethical commitments adopted by taking an oath can't possibly be narrower than those imposed by law, however, unless you are adopting some argument that natural law obliges people not to obey immoral positive laws. If you are, then some statement might commit you (under positive law) to do something that morally (under natural law) you shouldn't do. I don't get that out of what Cohen says. Instead, he just radically narrows the commitment of swearing to uphold the constitution of the state.
An alternative approach Cohen might have taken would be to note the fact that the letter-writer believes that the provision is unconstitutional (presumably violating the U.S. constitution.) If so, even from a positivist perspective, any provision of the state constitution that is inconsistent with the U.S. constitution (supreme law of the land) is void. Of course, that doesn't mean that lawyers can avoid affirmative duties to act in accordance with the law, it just means that in taking the oath, the individual doesn't need to feel as if she is endorsing the offensive provision.
The next bit indulges the flippant vibe that Cohen mistakes for comical lightheartedness, even though most of the examples are irrelevant to the issue at hand. The final sentence, oddly enough, has some good and practical advice. Cohen suggests that the individual seek bar admission in a state that grants reciprocity "if you would feel morally compromised" by taking the oath. Since the writer is asking (or so I thought) if (s)he should feel morally compromised by taking the oath, I guess this just means "I don't know really, but here's another way to accomplish your goals and feel better about it."
Like the title says, it's nice work if you can get it.