The joy and the challenge of being located in an academic setting is that I am also able to engage in forays (albeit intermittent forays) into scholarly analysis. Delivering this lecture, and publishing this piece, provides an excellent opportunity for me to engage in such a foray. This piece, then, is a scholarly reflection on my advocacy experiences. My goal is to use my experiences in advocacy as fertile soil from which to create, I hope, a lovely flower of theory and conceptual thought. Before setting out on this endeavor, however, I would like to offer two postulates. There are two essential qualities I believe distinguish advocacy (the fertile soil) from scholarly analysis (the flower). First, in advocacy, one always knows what one's end point will be — and that end point is decided by the client. Once an end point is decided upon (through the choice of client), the lawyer crafts every legal argument and analysis in the manner that will best achieve that goal. If there is a sticky, annoying problem that stands in the way of the goal — either an annoying problem with the law or an annoying factual problem — the lawyer's job is to try to explain away, or to manage, that problem. An advocate does not respond to a difficult legal or factual problem by deciding the opposition has the better of the argument and dropping his or her client's case. Rather, the lawyer crafts the best possible arguments to convince other relevant parties (a judge, a legislator, or an agency official) of the continued merits of his or her client's position. In litigation, lawyers for clients on either side argue the merits of their position in front of a neutral third party — a judge, a jury, or a panel of judges. The impartial third party is expected to navigate through the respective partisan arguments and to arrive at a decision that bests fits both the law and reality. The bottom-line of this piece is that a legal mandate to offer reasonable accommodations should be viewed as a form of legislating equality, not a form of legislating “equality-plus.” This is not a new idea. Whether one deals with the “sameness-difference” debate in feminism, affirmative action, or the debate concerning English as a second language, the idea that substantive equality requires more than formal equality is nothing new. Nevertheless, what I hope to offer in this piece is a model (and a visual) that can further explicate and apply this principle by drawing on the development of the reasonable accommodation mandate in the areas of religion and disability and in the absence of the development of such a mandate in the areas of sexual orientation and transgender status. As I note above, my conclusions in this piece will not be pre-determined by any client's established end point. But the fertile soil from which I hope to grow a theoretical flower is filled with practical experiences on behalf of clients. Indeed, it is precisely those experiences that have demonstrated to me that what should be an “old” idea is still an underdeveloped idea in American thought. Moreover, those practical experiences have also lead me to believe that a new model and visual might help the idea to become more accepted and might help opposing parties reach different conclusions as to what may be right or fair when equality claims conflict.
Chai R. Feldblum,
Rectifying the Tilt: Equality Lessons from Religion, Disability, Sexual Orientation, and Transgender,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol54/iss2/2