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HELENA – Multiple lawyers on Tuesday spoke against a proposed anti-discrimination rule that they say would infringe on the religious liberty of attorneys. 

If adopted by the Montana Supreme Court, Rule 8.4(g) would prohibit attorneys from engaging in harassment on the basis of race, religion, sex, ethnicity, disability, origin, age, marital status, sexual orientation, gender identity or socioeconomic status in conduct related to practicing law. The rule would not limit the ability of a lawyer to accept, decline, or withdraw from representation and would not preclude legitimate advice or advocacy consistent with the rules.

The rule is supported by the American Bar Association. 

Sen. David Howard, R-Park City, who said the rule would prevent attorneys from adhering to their religion, is sponsoring a resolution that would prevent the Montana Supreme Court from adopting it. Proponents of Senate Resolution 15 say the anti-discrimination rule would violate the First Amendment rights of attorneys. 

James Rigby, an attorney from Billings, said the rule would prevent lawyers from disclosing certain positions, such as disagreeing with transgender people using the bathrooms of their choice.

“This is a gag rule,” he said. “It’s a way to control what people say.”

The Montana Supreme Court announced in October it was considering adopting rule 8.4(g). Rep. Matthew Monforton, R-Bozeman, and Sen. Nels Swandal, R-Wilsall, filed an objection, saying the rule would affect Christian attorneys with strong beliefs. The objection says Justice Dirk Sandefur should not be allowed to participate in deliberations regarding the rule after leading a campaign based on religious bigotry, Monforton said.

During her 2016 campaign for Montana Supreme Court justice, candidate Kristen Juras shared her belief that Catholic pharmacists should not be required to sell birth control and ministers shouldn’t have to perform same-sex marriages.

During his campaign, Sandefur pointed out those statements made by Juras. Monforton said Sandefur’s comments demonstrate a clear religious bias and should prevent him from being involved in proceedings related to rule 8.4(g). The Supreme Court has not responded to the objection filed by Monforton and Swandal.

In the objection, Monforton and Swandal said teaching law school classes, speaking at public events or serving in a religious congregations would fall under the scope of rule 8.4(g), and lawyers would not be allowed to speak freely at such events.

“In short, rule 8.4(g) is an existential threat to attorneys who take faith seriously,” the objection says.

SK Rossi of ACLU Montana opposed Howard's resolution and said a 1974 decision determined the Legislature could not regulate lawyers.

Rossi said religious liberty is not threatened by the bill. If someone in a same-sex marriage were seeking representation for a divorce, the attorney could disclose their beliefs and the person could go on to find a different attorney.

“Time and time again the courts that have heard those arguments have said these protections do not violate your religious liberty,” Rossi said.

Other opponents of Howard's resolution included the Pride Foundation, the Montana Human Rights Network and the Montana Coalition Against Domestic and Sexual Violence. No one on the committee asked any questions.

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