Month: June 2019

By Will Ranstrom

‘Life, liberty, and the pursuit of happiness’ is perhaps the most well-known and often quoted phrases of the Declaration of Independence, yet one of the most enigmatic phrases enshrined in the annals of American history.  If you were to ask 100 random folks on the streets of any town in Idaho what that phrase means, you may receive 100 different responses, though the overall gist would likely remain the same.  Most responders would include the rights to be free, to love and be loved, and to be able to care and provide for their loved ones.

I have my own articulation of the phrase:  life, liberty, and the pursuit of happiness is the promise that the government will not unnecessarily restrict my path to creating my own version of a loving and supportive family and community.  Within that family and community, I should be able to obtain housing, be gainfully employed, associate with whomever I choose and create a family as I see fit for me.  In short, I should be able to live my life as I deem appropriate to my core values, provided that in such pursuit my actions do not interfere with the lives of others who are pursuing their own versions of life, liberty, and happiness.

Where one person’s rights end and another’s begin may seem like a juxtaposition, especially when those rights appear diametrically opposed.  However, it becomes easier to see that apparently opposing rights can and should harmoniously exist when you step back and empathetically view the similarities between apparently opposing communities.  Through my experiences, I have recognized the similarities between a misunderstood religious community and the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community.  These experiences, in turn, have given me an understanding that could help the religious and LGBTQ communities to resolve their legal tension.

My Background

I was born in Pocatello, Idaho, in 1976 to a mixed family:  my father’s side was a mix of members of the Church of Jesus Christ of Latter-Day Saints (LDS) and “Jack Mormons” (colloquial slang for non-practicing LDS members); and my mother’s side was a mix of LDS, “Jack Mormons,” and Mennonites.  Neither of my parents strictly subscribed to any religion, and my sister and I were given wide latitude to attend any services that we cared to attend with our friends or family while my parents attended their own Sunday services that were usually officiated by the National Football League.

By the time I was a teenager, I had attended services with the Mormons, the Mennonites, the Catholics, the Baptists, and the Protestants.  Admittedly, I did not attend so many services because I was seeking to find a deeper connection to religion.  Rather, I attended to seek a deeper connection with my friends and family who had invited me to join them.

As an astute student, I was fascinated by the rituals in each service and always paid close attention to the message that what was being taught.  The rituals were always different.  Sometimes the congregation sat, but sometimes they stood or kneeled.  Sometimes the congregation was completely silent, yet sometimes they interacted with the minister or sang hymns.

The story told to convey the message also varied greatly, but the overall theme of the individual messages remained constant.  Sometimes the story was funny and entertaining, but sometimes it was grim and sobering.  Sometimes the story was plain and the message was clear, yet sometimes the story was abstract and the message was discovered only through reflection and contemplation.  Whatever the differences in ritual or theme, however, the overarching message was nearly always the same:  love, understanding, and compassion for your fellow human beings, while allowing the Creator to be the judge of virtuosity.

When I decided to live my life openly and honestly as a gay man, it was 1998.  Coming out was beginning to become more mainstream in American society by then.  Several celebrities had come out, “Will & Grace” was a popular prime-time sitcom on network television, and nationwide companies such as Budweiser and Wells Fargo had begun to openly court the LGBTQ community.  My friends and family were mostly accepting, and those who struggled with my open identity soon realized that I was essentially the same person they always knew and loved and that by living my life openly I had blossomed into a happier and more joyous person who no longer carried the burdens of secrecy.

The Legal Tension

As society, in general, has become more accepting of the LGBTQ community since the late 1990s, the laws of the United States have slowly followed suit.  Some states extended civil union and equal protection rights to their LGBTQ citizens and eventually other states extended marriage rights to their LGBTQ citizens.  The United States Supreme Court eventually decriminalized same-sex sexual conduct,[i] declared the Defense of Marriage Act unconstitutional,[ii] and eventually legalized same-sex marriage throughout the United States.[iii]

Yet as LGBTQ rights have expanded, the tension between the religious and the LGBTQ communities has increased.  The crux of the tension was exemplified in Masterpiece Cakeshop.[iv]   In Masterpiece, a Christian baker in Colorado refused to bake a wedding cake for a same-sex marriage ceremony, citing First Amendment religious freedom protections.[v]   The same-sex couple filed a complaint with the Colorado Civil Rights Commission for discrimination under the Colorado Anti-Discrimination Act which forbade discrimination based on sexual orientation.[vi]   The baker was found in violation of the Act and appealed the ruling.[vii]   The U.S. Supreme Court held that, though Colorado had the right to protect its LGBTQ citizens, it must do so without animus towards the religious person or their sincerely held religious beliefs.[viii]

To say that the Masterpiece decision did little to resolve the tension between the religious and LGBTQ communities is a vast understatement.  In states such as Idaho, that have yet to include LGBTQ protections in their Human Rights Acts, the tension has increased.  So, the question becomes, how can the two communities co-exist with maximum legal protections for each without stifling the legal protections of the other?

Understanding Our Similarities

Though the religious and LGBTQ communities may seem strikingly different, they share similarities in past discrimination and misunderstanding.  They also share a commonality in their seeking life, liberty, and the pursuit of happiness.

Human history is filled with examples of religious discrimination from the beginnings of Christianity, Islam, and Judaism to our present day.  Many Idahoans are likely most familiar with the history of the LDS church and know that LDS members faced discrimination and misunderstanding from the inception of the Church.  My grandmother would tell stories of the faithful followers being ostracized and expelled from their communities because their religion and its practices were new and unfamiliar to the non-believers.  The followers were forced to relocate from New York, Ohio, Illinois, and Nebraska until finally finding refuge in what would become Utah in order to find a safe place to freely practice their religion.

Within the Utah Territory and its surrounding areas, the Mormons flourished and were able to establish loving, safe, and compassionate communities where they could live their lives openly, freely, and without interference from those who may not have understood the core values that the LDS church embraced.

Similarly, the LGBTQ community has faced discrimination and misunderstanding throughout human history.  Members of the LGBTQ community continue to be ostracized, expelled, jailed, beaten, stoned, and even killed because of their sexual identity. In some predominately Muslim countries such as Kuwait, Lebanon, and Bahrain, the conviction of homosexual conduct was and remains today punishable by up to 10 years in prison.[ix]   Prior to Lawrence, a conviction of sodomy in Idaho was punishable by five years to life in prison.[x]

Many LGBTQ individuals were forced from their homes and communities because of their sexuality and sought refuge in larger cities where others had established LGBTQ communities and neighborhoods, like San Francisco’s Castro district or New York City’s Greenwich Village.  Within these neighborhoods, LGBTQ citizens also flourished and were able to establish loving, safe, and compassionate communities where they could live their lives openly, freely, and without interference from those who may not have understood the core values that the LGBTQ community embraced.

For both the Mormon and LGBTQ communities, isolation was not the desired end, but instead the means necessary to create a home where they could feel protected and safe. Both communities sought an environment where they could create a family, obtain housing, and earn a living to support their families.  Both communities sought a home where they could be free of hate and animosity, and where both could pursue their own versions of happiness.

The Solution

The similarities between the communities and their abilities to thrive when isolated may lead you to think that separation is the solution for the two communities to live how they see fit.  However, life in the Information Age makes that solution untenable.  Technology has connected nearly every corner of the planet, and total isolation now requires a level of retreat that most people would eschew because human nature demands a greater sense of community and connection.  Additionally, I doubt that most of us would want to live in a completely homogenous society, free from fresh, new ideas and perspectives.

So, what is the solution to a harmonious, legally viable coexistence?  I do not know the answer.

What I do know is that some truths are self-evident:  all humans seek to create a safe, loving, compassionate community and family life in which they can thrive, love, and be loved. We all want to go about our daily lives without being hassled about our core beliefs and without compromising our core values.  We all want to celebrate the joys and accomplishments of life, and we all want to find comfort and solace in our friends and family during life’s inevitable tragedies.  We are all human and we all have similar basic human needs.

If we can try to understand each other’s perspectives, realize that we all have the same basic human needs, that our own core values may not strictly mirror that of our neighbors, and realize that our differences enrich us instead of devalue us, we can find the solution that works best for us all to live openly, freely, and harmoniously.

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[i] Lawrence v. Texas, 539 U.S. 558 (2003)

[ii] United States v. Windsor, 570 U.S. 744 (2013)

[iii] Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

[iv] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n., 138 S. Ct. 1719 (2018)

[v] Id. at 1723

[vi] Id.

[vii] Id.

[viii] Id. at 1732

[ix] https://www.theguardian.com/world/2016/jun/21/gay-lgbt-muslim-countries-middle-east

[x] http://www.glapn.org/sodomylaws/usa/idaho/idaho.htm

By Jeffrey A. Dodge

On my first day of law school, I walked into an imposing auditorium filled with dozens of professionally dressed students and faculty I would soon address as “colleagues.”  To get there, I spent nearly every dollar I had on the LSAT, application process, and relocation.  As a first-generation student and a gay man, I felt out of place. Though my family beamed with pride as they saw one of their own go to college, and then law school, for the first time, I felt insecure and anxious at the “what ifs” ahead.  As I listened to the dean speak at orientation, I suddenly felt paralyzed by the thought of difficult classes, three years of hard work, over $100,000 in debt, the Bar exam, and the elusive character and fitness process.  I kept thinking: Do I belong here?  Are there others in my class who are gay?  Can I do this?  I don’t know any attorneys; how will I get a job?

Somehow, I wrested my limbs from paralysis and moved cautiously toward my future.  It was not an easy decision to complete orientation and show up for the first day of classes.  Many others from diverse backgrounds have the same sense of unease, often referred to as “imposter syndrome.” Sadly it does not go away over time: some 16 years later, I often still feel like I don’t belong or that I somehow got to where I am by pure luck.  For those whose difference is seen before spoken, these feelings can be even worse.  I can’t imagine the daily worries around having physical limitations, presenting as a gender different than assigned at birth, or fearing someone will assume my immigration status based on the color of my skin.  To carry those worries into law school and then manage the same workload as everyone else is a heavy burden to bear.

The experiences of our diverse students can be obstacles to their success in our profession. But it’s those very experiences that make their engagement so important.  Our diverse colleagues enrich and inform the legal profession’s evolution, and how the profession supports and embraces them is critical to developing a more just society.

A Look at Diversity Data

Fortunately, Idaho’s law schools are blazing trails in a state that does not naturally offer much quantifiable diversity.  Current projections say that Idaho’s population is hovering at just shy of 1.8 million people. Of that group, less than 9% self-identify as ethnically diverse.[i]  Neighboring state populations, from which Idaho’s law schools may more easily recruit students, don’t offer much more in the way of diversity. Utah, Oregon, Montana, and Wyoming have, at most, a population that is 15% multicultural.  Nationally, the demographics of attorneys aren’t that much better with only 15% of lawyers identifying as multicultural and 36% being women.[ii] Both Idaho law schools should be commended not only for their commitment to enrolling diverse, students but also for doing so given these challenges.

In Fall 2018, Concordia University School of Law enrolled a class with 17% self-identifying as ethnically diverse and 30.5% women.[iii]  Of the entire student body, 21% are multicultural and 34% are women.  The multicultural diversity at the University of Idaho (U of I) College of Law is even higher with an entering class comprised of 26.5% self-identified ethnically diverse students and an entire student body that is 22% multicultural.[iv]  Women made up 49% of the Fall 2018 entering class and are 44% of the entire student body.

All of this raises the question: How are Idaho’s law schools transcending their population base and enrolling such diverse student bodies?

Programs that Embrace Diversity

National, statewide, and institutional efforts are at play in order to enroll incoming classes that are more diverse than the state population. The Council on Legal Education Opportunity, Inc. (CLEO), is a 50-year-old national organization committed to diversifying the legal profession through the Pre-Law Summer Institute, workshops, and resources. This program exists to help minority, low-income and disadvantaged groups access legal education.  More than 300 students apply each year for 40 spots in the summer institute. The institute teaches students how to read and brief court opinions, prepare for law school exams, conquer the workload and stress in law school, establish productive study groups, and more.

In Fall 2015, four law schools, including the U of I, signed on to an experimental program that aimed to further increase access to law school for minority students.  This program, the CLEO Legally Inspired Cohort (CLIC), enrolled five students at U of I who successfully completed the CLEO Pre-Law Summer Institute and CLIC four-day seminar.  The CLIC Scholars had worked together with the intention of enrolling somewhere as a group. Once they began law school in Fall 2016, the students received continuous academic, financial, and other support services during their first year of study.  The first five CLIC Scholars, all previously non-residents of Idaho, are set to graduate from U of I this month, and more are in the pipeline to graduate soon.

Concordia and U of I are also equally committed to the Idaho State Bar’s Love the Law! program.  An initiative by the Diversity Section, Love the Law! promotes diversity, equality, and cultural understanding to better serve the State’s diverse citizenry.  In particular, the Jennifer King Memorial Scholarship program has provided financial assistance for applicants’ LSAT study courses, test fees, and Idaho law school application fees.  This support eliminated the financial barrier to legal education in Idaho for diverse applicants, many of whom have gone on to pursue their Juris Doctor degrees.

Both Idaho law schools have made great efforts to attract and support diverse students through institutionally-developed initiatives.  Concordia hosts a Women Leading Women breakfast series to connect female students with professional women in the Boise area for employment and leadership opportunities.  It also signaled its openness to lesbian, gay, bisexual, transgender, and queer students by hosting the Interfaith & LGBT Summit in February 2019.  The summit, part of Diversity Week, engaged attendees in the perceived tension between religious liberties and nondiscrimination solutions.  In May 2016, the Admission by Performance program launched to acknowledge that standardized tests do not always predict law school success, particularly for underrepresented populations.  The program resulted in increased enrollment and diversity in Concordia’s incoming classes for the past three years.  Lastly, Concordia has made efforts to be as accessible and supportive to veterans as possible.  It works with veterans closely to utilize their benefits and supports them throughout their legal education.

At U of I, the College of Law’s student diversity has resulted in inclusion on the U.S. News & World Report Top Law Schools for Diversity list.  The richness of the student body ensures active diversity-related student organization efforts, like the Latino/a Law Caucus’ pro bono and humanitarian trip to Othello, Washington, and the Women’s Law Caucus’ speaker series.  The College maintains a Professionalism Education Program graduation requirement that includes programs on cultural competency and bias in the profession.  Diverse students are also attracted to the Native American Law emphasis and Immigration Litigation and Appellate Clinic programs, amongst others.  U of I also visits diverse middle and high schools to introduce law as a potential career path.

These programs and many others are just some of the reasons Idaho’s law schools are successful at enrolling a more diverse student body than the population of the state.  Through these efforts and the bridges they build with the bench and bar, the hope is that when students graduate they will be met with a profession equally supportive of their unique contributions.  The transition can be intimidating, though, and the success of that relies heavily on the attorneys who welcome them.

Supporting the Transition to Practice

The role of law schools is to recruit, retain, and graduate diverse law students.  But how employers evaluate and support these students as they become attorneys is something for members of the bench and bar to consider.  Diverse attorneys have different and varied needs as they navigate a profession that does not look, sound, or relate to them in the same ways as other professions might.  Much has been written about the connection between well-being and inclusion.  That connection, or lack thereof, impacts attorney retention, business development, and morale.

Consider the following suggestions as ways to better support diverse colleagues:

Be an Active Mentor.  Many studies have shown that diverse law students, and then attorneys, benefit greatly from having a mentor to help them navigate challenges and opportunities.  Be conscientious and intentional about mentorship by having dedicated times to check in; introducing new clients, contacts, and organizations; supporting each other personally and professionally; and showing up for important moments.

Encourage Professional Association Involvement.  Organizations like the Idaho Women Lawyers, the National Association of Attorneys with Disabilities, the National LGBT Bar Association and more are opportunities for diverse attorneys to connect with others and find professional and personal support.  Colleagues who actively encourage diverse attorneys to engage with these associations will be seen as allies.

Make Room for Differing Views.  A true benefit of diversity in the profession is that new ideas and beliefs are brought to the table.  Though diverse perspectives may at times require a reexamination of commonly held beliefs, make room for these views in the least defensive way possible as forced cultural norms lead to exclusion.  Ways of doing things, strategies on a case, operational processes, and many other “status quo” approaches may need to be questioned in the name of inclusivity.

Avoid Tokenizing.  Few things are more off-putting than feeling tokenized or having one’s difference on display and used for the benefit of others.  As diverse attorneys enter new spheres of our profession, avoid over-relying on their identity as a basis for placing them on hiring or climate committees, assigning them a certain type of client, or limiting them to matters before certain courts.  These attorneys deserve the richness of experiences provided by their employer and shouldn’t carry the burden of the sole representative of diversity through service or unseen and unbillable work. Diverse law students and colleagues bring their background, skills, and life experiences to the classroom, the workplace, and the people they ultimately serve.  Their contributions are both immeasurable and sometimes not fully realized until offered the support and environment they need to shine.  Supporting a diverse and inclusive bench and Bar requires intentionality and hard work.  I encourage us all to be self-reflective about ways we can contribute to these efforts.

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[i] Idaho Population, http://worldpopulationreview.com/states/idaho/ (last visited May 2, 2019).

[ii] American Bar Association, National Lawyer Population Survey, https://www.americanbar.org/content/dam/aba/administrative/market_research/National_Lawyer_Population_Demographics_2008-2018.pdf (last visited May 2, 2019).

[iii] Concordia University School of Law, https://law.cu-portland.edu/admission-financial-aid/aba-required-disclosures (last visited May 2, 2019).

[iv] University of Idaho College of Law, https://www.uidaho.edu/law/admissions/aba-requirements (last visited May 2, 2019).

By Kylie Hicks and Tanner J. Bean

There are two places to resolve competing civil rights: the courts and the legislature. In the courts, rights are pitted against another, locking parties in an expensive, intractable battle that imperils the human dignity of communities as media outlets paint the communities as “enemy” and “other.” In the legislature, the resolution of these rights hinges upon finding common ground between communities with unfamiliar ideas and modes of life.

Idaho has yet to make up its mind about which approach is more attractive, at least when it comes to LGBT rights and religious liberty. So we convened the Interfaith & LGBT Summit on Religious Liberty and Nondiscrimination Solutions[i] to help Idaho along. The Summit gathered 20 speakers and 150+ audience members from the faith and LGBT communities across Idaho to sit down and talk about the rights each community seeks. It was an unprecedented gathering in our state.

For compromise

The Summit featured four, panel discussions and spanned two days at Boise’s two law schools, where speakers voiced their opinions on the best way to resolve the competing rights of LGBT nondiscrimination and religious liberty. President Pro Tempore Brent Hill, who appears to lead the Idaho Legislature in dialogue[ii] on these issues, anchored one group of speakers. This group held fast to the concept that building common ground between the communities was essential to lawmaking because the best (and perhaps the only politically possible) type of legislation will include protections for the LGBT community and the faith community. This concept is often referred to as a “compromise,” a “balanced” approach, or “Fairness for All.”

Speakers like Eric Baxter, Senior Counsel for the Becket Fund for Religious Liberty, emphasized that such legislation “should make room for people to live, on both sides, their lives in the fullest.” Recognizing that the freedom of one community need not be deprived in order to protect the other, Howard Belodoff, Associate Director of Idaho Legal Aid Services, noted, “you don’t protect or preserve the freedom of one group by depriving others of their freedom.” Representative John McCrostie, the only openly gay legislator currently serving in the Idaho Legislature, seemed to agree. Acknowledging the influence of both faith and sexuality play in his life, he asserted that “[c]ompromise does not require an abandonment of your beliefs. Both the LGBT community and the religious community can hold on to the things that we treasure dearly. These are values that make us who we are, and we don’t have to give that up through compromise.”

Fears about the ability to live authentically in private and in public motivated much of this discussion about compromise. Doug Werth, Lead Deputy Attorney General at the Idaho Human Rights Commission, cataloged the progress of civil rights and the rate of discrimination claims filed in Idaho. Boise Mayor David Bieter explained the motivation behind Boise’s municipal LGBT nondiscrimination ordinance:[iii] LGBT people were afraid to make complaints to the police department for crimes committed against them, fearing collateral consequences if an investigation outed them. University of Idaho College of Law Professor Katherine Macfarlane drew an analogy to disability discrimination, noting that discrimination pervades society and injures individuals going about their daily lives. Perhaps most succinctly, Kathy Griesmyer, Policy Director and Chief Lobbyist at the ACLU Idaho, concluded LGBT discrimination is “not a feeling, it’s a reality.”

Against compromise

Griesmyer joined other speakers at the Summit who rejected the notion of legislative compromise. She argued that the LGBT community should hold out and seek protection from the courts until the Idaho Legislature is willing to pass an LGBT nondiscrimination law without any religious liberty protections. This model follows the “Add the Words” proposal,[iv] which would add gender identity and sexual orientation as protected categories to the Idaho Human Rights Act (IHRA), as Chelsea Gaona-Lincoln, Chair of Add the Words Idaho, explained to Summit attendees.

Senator Grant Burgoyne shared that from his interactions with LGBT advocates, he has no sense that they are willing to compromise. To Senator Burgoyne, it appears the LGBT community has weighed the risk of (1) receiving some protections now from the Idaho Legislature in a compromise bill against the possibility of (2) receiving all desired protections in the future from the courts or a more sympathetic Legislature. Although former Idaho State Representative Nicole LeFavour expressed that “the cost of doing nothing in our state” can be as drastic as murderous hate crimes and violence against the LGBT community, Senator Burgoyne’s estimation is the LGBT community is “willing to wait. They’re willing to fight.”

Proposed and existing religious exemptions

The disparity in opinion of those amenable and opposed to compromise can largely be attributed to the inclusion of religious exemptions in a compromise bill. LeFavour questioned, “What about including [LGBT people] in the law suddenly requires a religious exemption?” For LeFavour, any religious exemption would signal that LGBT people “are less than human.” President Pro Tempore Hill’s “Concepts for Discussion,”[v] which outlines future legislative dialogue, seeks protections for religious organizations and small businesses in the contexts of employment, housing, and public accommodations. These protections would allow employees to “express their religious or moral beliefs without retaliation”; permit business owners to “abstain from celebrating ‘expressive activities,’ such as demonstrations, weddings, and religious events”; allow “faith-based adoption agencies to avoid services that violate their religious policies”; and ensure “business owners will not have their licenses revoked because of their beliefs.”

Currently, the IHRA,[vi] much like its federal nondiscrimination cousins,[vii] contains religious exemptions from the nondiscrimination duties it imposes along the lines of race, color, religion, sex, national origin, and disability. For example, IHRA allows religious corporations, associations, and societies to make employment decisions based on religion; permits religious schools to choose students based on religion; exempts religious organizations and places of worship from the definition of a place of public accommodation; releases small landlords, who may be religious, from non-discrimination obligations; and allows religious charities to give preference to members of the same religion in real property transactions.[viii]

Theoretically, religious exemptions may also be obtained in court under Idaho’s Free Exercise of Religion Protected Act (FERPA),[ix] the state-level cousin to the federal Religious Freedom Restoration Act (RFRA), which codifies a multifactorial balancing test between religious free exercise and the government’s interest in applying otherwise beneficial legislation. However, since FERPA’s enactment in 2000, no appellate court in Idaho has granted a religious exemption—the Idaho Supreme Court has never even addressed the statute.[x] Moreover, no court in the country has ever granted a religious exemption through an RFRA-type law from an LGBT nondiscrimination law.[xi] Yet, at the Summit, Griesmyer, and Gaona-Lincoln expressed that FERPA and the religious exemptions already found in the IHRA will sufficiently protect the free exercise of religion when sexual orientation and gender identity are added as protected classes.

A religious exemption in the public accommodations context may be the sticking point that has prevented a compromise bill to date. Representative McCrostie recounted that in the hearings on a previous Add the Words bill, public comment from the faith community did not demonstrate strong objection to LGBT nondiscrimination protections in employment, housing, or education, but the issue of public accommodations invoked concerns similar to those behind Masterpiece Cakeshop,[xii] where the Colorado Civil Rights Commission sanctioned a Christian baker for declining to bake a wedding cake for a same-sex wedding celebration.

Municipal inconsistency

Although the Summit speakers took different views on the matter of compromise, all saw the need for a state-wide measure to be passed in the Legislature. University of Illinois College of Law Professor Robin Fretwell Wilson brought to light that Idaho currently has only patchwork protection for LGBT and faith communities, spread across 13 municipalities that ban LGBT discrimination and the numerous municipalities that do not.[xiii] Griesmeyer expressed how patchwork protections make life unpredictable: one may be protected from discrimination while at work in Meridian,[xiv] but lose protections after traveling home to Nampa. While waiting on a state-wide measure, Luke Caverner, Vice President of the Meridian City Council, encouraged attendees to “take the bull by its horns and go work at the local level.”

Community voices

Several speakers at the Summit spoke less of law and politics and more of compassion. Reverend Sara LaWall, of the Boise Unitarian Universalist Fellowship, professed that as a person of faith, she views her job as loving people “in the fullest expression of who they are as a human being” to “affirm the inherent dignity of every person.” Father Antonio Egiguren of St. John’s Cathedral shared his conviction that solutions are in our hearts as he extolled the golden rule. In step with Father Egiguren, Phillip Thompson, Former President of the Islamic Center of Boise, stated, “If we injure or do harm to one member of humanity, we do injury or harm to all of it.” Or, in the words of religious educator John Thomas, to solve these issues, we must avoid the “Puritan Mistake:” “liberty for me, but not for thee.”

Academic dialogue

The dialogue that unfolded at the Summit is mirrored in the high-level academic debates compacted into an innovative book: Religious Freedom, LGBT Rights, and the Prospects for Common Ground.[xv] The book, edited by Wilson and Yale Law School Professor William N. Eskridge, Jr., was digested by several Summit panelists. Led by Wilson, each panelist responded to a chapter from the volume.

President Pro Tempore Hill reviewed former Utah Governor Michael Leavitt’s chapter, Shared Spaces and Brave Gambles, which details five elements that bring opposing parties to legislative compromise: (1) common pain, (2) a shared belief, (3) political equilibrium, (4) skilled conveners, and (5) simultaneous benefit. President Pro Tempore Hill stated that many of these elements are already in play in the Idaho Legislature. Concerning simultaneous benefit, he expressed, “I am convinced, after studying this as long as I have, that each side can have every right that they want.” The chapter reviewed by Representative McCrostie, Choosing Among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy, written by Alan Brownstein, examines another feature of the approach toward cooperative solutions: greater dialogue, tolerance, and engagement. Rather than going “to war and try[ing] to annihilate each other,” Representative McCrostie said Idaho is “not choosing coercive negotiation tactics. What we are choosing to do is choose greater dialogue by the opposing sides.” As Brownstein recognizes, the “essence of liberty in a free society is the right to act wrongfully in the eyes of others.”

Although people of faith and the LGBT community might not see eye to eye, Doug Laycock’s chapter, Liberty and Justice for All, reviewed by Baxter during the Summit, lays out five similarities between the two groups: both (1) believe some “aspects of human identity are so fundamental that they should be left to each individual,” (2) feel their identity cannot be changed by a simple act of will, (3) have been told their rights do not deserve legal protection, (4) desire to live their lives publicly, and (5) have seen their highest virtues condemned. Of this, Baxter instructed that people must “learn to accept the other side’s own view of what they are,” or, put another way, give people “the right to be wrong.”

Senator Burgoyne, who reviewed Rabbi David Saperstein’s chapter, Masterpiece Cakeshop: Impact on the Search for Common Ground, disagreed with one of Saperstein’s conclusions that now is the time for a compromise between faith and sexuality. He argued that because these disagreements will “go on forever,” the courts are the “best place to resolve these rights,” where “religious freedom [is] as every bit as important as LGBTQ rights.” Capping off the book discussion, University of Idaho College of Law Professor Shaakirrah Sanders recognized the fraught jurisprudence of religious liberty and the torch the LGBT community now carries for civil rights. While agreeing that compromise is enviable, she highlighted that “[w]hile we’re waiting to reach our nirvana on these issues, rights are violated and generations of people are affected.”

Beyond these chapters, Prospects for Common Ground offers a “360-degree view of culture-war conflicts around faith and sexuality.” The mere existence of the book serves to discredit the notion that religious liberty and LGBT rights are mutually exclusive, with one necessarily prevailing over the other, as well as the notion that productive dialogue on these issues eludes American society. In the book, authors offer multiple approaches to common ground lawmaking and peaceful coexistence, each of which is instructive to state and national efforts to legislate fairness for all people. What is more is that these solutions come from a vast array of voices: religious liberty and equality advocates, faith leaders, academics, government officials, and legislators. Together, the chapters in Prospects for Common Ground serve as an academic gateway to nuanced, pragmatic, and dispassionate solutions that afford both the faith and LGBT communities a life without discrimination.

Conclusion

It is our opinion that the Summit was an Idaho translation of this high-level discussion, made plain for the communities who fear discrimination among us. As dialogue rolls forward in 2019, we hope that inclusive models and creative proposals—taking faith, sexuality, and gender into account—will emerge as frontrunners. In this arena, the law has the capacity to elevate many Idahoans out of second-class status while affirming the human dignity of all. We hope the Idaho Legislature takes that step.

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[i] Recordings of the Summit, as well as media coverage and panelists’ biographical information, are available at: goo.gl/QT8VtP

[ii] Betsy Russell, Sen. Hill on LGBT Discrimination Protections: ‘The Risks of Doing Nothing Are Great on Both Sides,’ Idaho Press, Feb. 20, 2019.

[iii] Boise, Idaho, Code §§ 3-14-14, 5-15-1 et seq.

[iv] S.B. 1015, 65th Leg., 1st Reg. Sess. (Idaho 2019).

[v] Available upon request from President Pro Tempore Hill’s office.

[vi] Idaho Code § 67-5901 et seq.

[vii] 42 U.S.C. §§ 2000a et seq., 2000e et seq., 3601 et seq.; see also Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston U. L. Rev. 951, 973–82 (2015) (discussing lasting exemptions from federal civil rights law).

[viii] Idaho Code § 67-5910.

[ix] Idaho Code § 73-401 et seq.

[x] See Ricks v. Contractors Bd., 164 Idaho 689, 435 P.3d 1 (Ct. App. 2018); State v. Cordingley, 154 Idaho 762, 302 P.3d 730 (Ct. App. 2013); State v. White, 152 Idaho 361, 271 P.3d 1217 (Ct. App. 2011); Hyde v. Fisher, 143 Idaho 782, 152 P.3d 653 (Ct. App. 2007); Lewis v. State, Dep’t of Transp., 143 Idaho 418, 146 P.3d 684 (Ct. App. 2006); Roles v. Townsend, 138 Idaho 412, 64 P.3d 338 (Ct. App. 2003).

[xi] Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 U. Conn. L. Rev. 1, 14–19 (2019) (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3360500.

[xii] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[xiii] Local Non-Discrimination Ordinances, Movement Advancement Project (Mar. 28, 2019), http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances.

[xiv] Maria L. La Ganga, Meridian bans LGBTQ Discrimination, Sending What Backer Calls ‘Message of Inclusivity,’ Idaho Press, Sept. 26, 2018; Meridian, Idaho, Code § 1-15-1.

[xv] Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., 2018).

Dear Editor,

This letter is a summary of a larger article which I submitted to The Advocate entitled, “Is Global Warming Bad? If So, Is There a Better Way to Stop It?” That article is a response to articles published in the January 2019 issue of The Advocate prepared by the Environment & Natural Resources Law Section.

Contrary to reports in the media and some in the scientific community, carbon dioxide (CO2) is not an air pollutant. The atmosphere consists of nitrogen (78%), oxygen (21%), argon (.93%); carbon dioxide is only .04% (400 parts per million-ppm). However, even in that miniscule amount carbon dioxide is the gas that supports all life on earth through the process of photosynthesis, in which plants convert sunlight, water, and carbon dioxide into vegetation. That vegetation forms the base of the food chain which supports all creatures, humans, animals, and insects. And the oxygen we breathe is a byproduct of that photosynthesis.

Without carbon dioxide, even in those minuscule amounts, there would be no vegetation on earth, no animals, and nothing for humans to eat. Put simply, we humans wouldn’t exist.

But we do exist, and comfortably too, thanks to conditions eons ago when the earth was much warmer, wetter, and carbon dioxide was in much higher concentrations. Those conditions produced the lush vegetation that was laid down millions of years ago and became the huge seams of coal, and pools of oil and natural gas, which brought humans out of the stone-age. That stored energy has provided the food, electricity and hundreds of thousands of other products that support the seven billion people currently living on this planet.

With the population estimated to reach 10 billion by the end of this century, the world will have to rely even more on that stored energy to feed, clothe and house an additional three billion people. The current global warming started about 150 years ago at the end of the last little ice age. That warming and the carbon-based commercial fertilizers manufactured from natural gas have increased the production of food necessary to feed the ever-increasing global population. Solar, wind, hydro and nuclear power can supplement the electricity supply, but nothing can replace carbon in the thousands of uses and products in which it forms the chemical base.

Increasing levels of carbon dioxide can cause heat to be trapped in the atmosphere, potentially increasing global warming. But global temperatures oscillate naturally between warming and cooling in 1,500-year cycles. If trapped CO2 in the atmosphere does exacerbate the natural global warming phenomenon, there are geoengineering experiments currently being investigated to block sunlight from parts of the world to remediate global warming. The cost of that geoengineering is estimated to be only .01% of the hundreds of trillions of dollars necessary to deconstruct carbon from our energy mix and replace it with who knows what! The “green” anti-carbon revolution is a misnomer. It is carbon dioxide that makes things “green”!

The full article in response to the January 2019 issue is available below.

Retired Chief Justice Robert E. Bakes

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Is Global Warming Bad?   If So, Is There a Better Way to Stop It?

(Without destroying our current carbon-based energy system)

The world is engaged in a massive expensive effort to reduce carbon dioxide (CO2) in the atmosphere, which most scientists and politicians believe is causing increased global warming.   And the costs of the current attempts to remediate that warming are astronomical.  As reported in an article in the 12/1/18 Economist magazine, p.68. (‘Verdant and vibrant”), “If the world is to tackle global warming, vast amounts of money–$3.5 trillion annually from now until 2050, according to the International Energy Agency, a forecaster—will have to flow into clean-energy research and generation.” That is more than $100 trillion to the year 2050 and $250 trillion by 2100.  And that doesn’t include the cost of retrofitting the existing energy system.

Despite the current worldwide attempts to restrict carbon dioxide emissions, the problem is getting worse.   The Idaho Statesman newspaper reported on 12/6/18 that Global carbon emissions recently soared to record highs, with India increasing 6%, China 5%, and the U.S. 2 ½%.  While the scientific community is divided, most believe that carbon dioxide is accelerating world temperature increases.   But that may not be all bad.  Increased global warming could help produce more food necessary to feed the anticipated 2-3 billion increase in the world population by the year 2100.  Even if on balance global warming causes more harm than good, there may be a better and cheaper way to contain global warming without the gigantic and expensive attack on the world’s carbon energy resources (coal, oil and natural gas), and the expense of retrofitting the entire existing world energy infrastructure–power generation and transmission, chemical and industrial uses, office buildings, homes– to a new energy regime.

First, it is important to recognize that there is very little carbon dioxide in the earth’s atmosphere, which consists of Nitrogen-78%, Oxygen 21%, Argon .93 %, and Carbon dioxide only .04%,(400 parts per million(ppm).  Wikipedia, “Atmosphere-composition”.   However, even in that miniscule amount carbon dioxide is the compound that fuels all vegetation growth on earth thru a process called photosynthesis in which plants convert sunlight, water, and carbon dioxide into the carbohydrates that produce vegetation.  Vegetation forms the base of the food chain for all creatures, human, animal or insect.  And oxygen is a byproduct of photosynthesis which maintains the oxygen in the Earth’s atmosphere which humans and animals need to survive.  Simply put, without carbon dioxide, even in that miniscule amount, there would be no life on earth because there would be no photosynthesis producing vegetation and oxygen.

Then, the ultimate questions which the world community must resolve are:    (1) if increasing levels of carbon dioxide in the atmosphere is accelerating natural cyclical warming, do the benefits of that additional CO2 induced warming to outweigh the damage which it causes; (2) if the global warming benefits do not outweigh the damage, is there a better way to control global warming without eliminating carbon/carbon dioxide from the world’s energy structure.

In a statement often attributed to Justice Oliver Wendell Holmes, there are times when “a page of history is worth a volume of logic”.  Nowhere is that truer than in the role of carbon dioxide in the history of the world.   Geological history discloses that in eons past the earth was warmer, wetter, and vegetation was unimaginable dense, thanks to high carbon dioxide concentrations.  According to a 2017 article by Dennis T. Avery, an agricultural and environmental economist and senior fellow for the Center for Global Food issues in Virginia:

“Our crop plants evolved about 400 million years ago when CO2 in the atmosphere was about 5,000 parts per million!  Our evergreen trees and shrubs evolved about 360 million years ago, with CO 2 levels at about 4,000 ppm.  When our deciduous trees evolved about 160 million years ago, the CO2 level was about 2,200 ppm-still five times the current level.”

Dennis T. Avery

Most of the energy that currently drives the world’s economies come from those high carbon dioxide days millions of years ago that laid down vegetation in huge layers.  Those layers became seams of coal and pools of oil and natural gas.  Humans have been living off that stored energy since the beginning of time, but especially in the last 2-3 centuries.  Without that stored energy humans would still be living in the stone age.  While that supply won’t last forever, there’s probably enough for several more centuries.

But rapidly increasing carbon dioxide concentrations may create a problem– it tends to trap heat in the atmosphere, and in too great concentrations may cause increased global warming.   The word “increased” is the key.   The earth has been in a continual state of global warming since the last big ice age which occurred about 12,000-15,000 years ago, which covered most of North America with ice and snow, hundreds of feet thick in some places.  As reported by Dr. Avery, “What few realize, however, is that during the last Ice Age too little CO2 in the air almost eradicated mankind.  That’s when much colder water in oceans (that were 400 feet shallower than today) sucked most of the carbon dioxide from the air…The Ice Age’s combined horrors-intense cold, permanent drought and CO2 starvation-killed most of the plants on earth.  Only a few trees survived, in the mildest climates.  Much of the planet’s grass turned to tundra, which is much less nourishing to the herbivores [which] prehistoric humans depended on for food and fur.  Recent Cambridge University studies conclude that only about 100,000 humans were left alive worldwide when the current interglacial warming mercifully began.” (Avery at ps. 1-2)

Even the little ice age, which occurred more recently – about 3-5 centuries ago – substantially reduced temperatures in Europe causing major crop failures resulting in millions of people and animals starving.  The Norse, who settled in Greenland around the year 1000 A.D., during the Medieval Warm Period, farmed and raised grain and cattle for several hundred years until they were forced to abandon their settlements about 1500 A.D. because extreme lower temperatures during the little Ice Age made farming Impossible.  It had the same effect in North America.  While the indigenous people here did not have written languages, the record of such cooling is reflected in such events as the abandonment of the pueblos in the southwest U.S.

So, global warming and cooling is nothing new.   Warming has been occurring naturally in cycles, most recently after the end of the recent Little Ice Age, and geologically for eons before that.  However, the prior warming and cooling periods were slow enough, and populations were sparse enough, that populations were able to adjust without too much dislocation.   For example, the Norse had decades to relocate out of Greenland.  Holland had centuries to build up its dikes. But the current global warming is predicted by some scientists to cause oceans to rise too rapidly, causing dislocations, especially in low lying cities and countries.

But there are also major benefits from Global warming.    In an article in the December 1, 2018  issue of the Economist magazine entitled, “Good times in Grainville”, the Economist noted that in Russia “Rising temperatures and improving technologies mean longer growing seasons, higher crop yields and wider swathes of arable land in much of Russia”, … “Everyone is moving north”.  The article further notes that “In 2016 Russia became the world’s leading exporter of wheat for the first time since before the Russian revolution”… “Grain is our second oil,” said Aleksandr Tkachev, the agriculture minister.  During the early Soviet days, before the recent warming trend, Russia was an importer of grain.  Global warming has helped Russia become the world’s leading producer and exporter of wheat, which perhaps explains why Russia, and four other countries including the U.S., balked at “welcoming” the recent special report of the current Intergovernmental Panel on Climate Change in Poland which severely criticized the inadequate goals to limit carbon dioxide emissions.     Global warming appears to be economically good for Russian agriculture– and probably for Canada as well, and for other countries in the world’s temperate zones which have large swathes of arable land which a warmer climate with more carbon dioxide would make more productive.

As reported by scientists S. Fred Singer Ph.D. and Dennis T. Avery in their book “ Unstoppable Global Warming-Every 1,500 Years”, (ROWMAN & LITTLEFIELD 2008), world temperatures tend to oscillate between warming and cooling periods  of approximately 1,500 years, and the earth is currently in a warming phase since the end of the little Ice Age about 1850 A.D.  The increase in worldwide population has benefitted from “more CO2 in the air [which] enables plants to grow better at nearly all temperatures, but especially at higher temperatures…” (Unstoppable at p. 174)  The ever-increasing world population (from 7 billion to 10 billion by 2100) will require more food which global warming and increased carbon dioxide could help produce.   According to Singer and Avery, “Doubling the level of CO2 raises the net productivity of herbaceous plants by 30 to 50 percent and of trees and woody plants by 50 to 80 percent, based on extensive reviews of the research by Sherwood B. Idso and Bruce Kimball, then of the U.S. Department of Agriculture’s Water conservation Laboratory and Henrik Saxe, of the Royal Veterinary and Agricultural School of Denmark.” (Unstoppable at p. 175).  That has been demonstrated in the greenhouse plant industry which in recent decades has been injecting high levels of CO2 into sealed greenhouses which substantially increases plant growth.  So before the world engages in an all-out war on carbon dioxide emissions, it should compare the benefits of global warming to its detriments.  Only if it appears that the damage it causes will substantially exceed the benefits, should the world consider rejecting the current carbon energy regime.

But even before that, we should examine to see if there is another way to stop excessive global warming without spending hundreds of trillions of dollars to restructure the entire world’s energy and economic systems to eliminate carbon dioxide.  There is a way called “stratospheric aerosol injection”—injecting aerosols high into the atmosphere.  It occurs naturally when there is a major volcanic eruption, such as occurred in 1991 when Mount Pinatubo erupted belching sulfate gases into the atmosphere causing a .5 degree cooling of the earth’s atmosphere.  The most dramatic example of stratospheric aerosol injection occurred 66 million years ago when a giant 7-mile wide asteroid hit the shore of the Yucatan peninsula causing the extinction of the dinosaurs and three-fourths of the species on earth.  As reported in the PBS NOVA program on January 22, 2019, it wasn’t the shock and heat wave that caused the extinction, although it killed everything within several hundred miles.  It was the mega tons of clouds of smoke, dust and sulfur dioxide hurled into the atmosphere which quickly spread around the world, eliminating substantially all sunlight for months or years causing a global winter.  With no sunlight, there was no photosynthesis and substantially all vegetation around the earth died causing the great animal extinction. According to NOVA, only a few small species survived, living on seeds not damaged by the blast, seeds which eventually sprouted bringing back vegetation to earth, starting the cycle over again.

Stratospheric aerosol injection could possibly solve the global warming problem.   As noted in another article in the Economist magazine, December 1^st, 2018, ”The Intergovernmental Panel on Climate Change notes that reflecting sunlight back into space before it warms the Earth’s surface, perhaps using particles—a form of ‘solar geoengineering’—is ‘highly likely’ to limit temperature rises”.

There are recent indications that some in the scientific community have started to recognize that solar geoengineering may be a better and cheaper way to control global warming if that is necessary or desirable.  Several years ago Harvard University established a Solar Geoengineering Research Program to study the possibility of controlling global warming by using aerosol injections into the atmosphere.   A recent article reported that Harvard scientists, supported by a $3 million dollar grant from Bill Gates and others, are preparing a geoengineering experiment in the spring of 2019 to “launch a maneuverable balloon into the stratosphere above the United States southwest…[to].programmatically release calcium carbonate into the stratosphere” to block out the sun’s rays from the earth as a way to defeat climate increase.  See https://prepforthat.com/harvard-scientists-block-sunsrays.com. (12/8/18)

Only recently has any effort has been made by governments, the scientific community, or the media, to evaluate the benefits of global warming, and to compare those benefits to the detriment that global warming might cause in parts of the world, such as low lying cities and countries which will be subject to flooding by rising seas.    But before the world gets too heavily invested economically and politically into trying to stop global warming by reducing carbon dioxide emissions, it should consider the solar geoengineering option.  According to an article in Wikipedia “Around 5 million tons of SO2 delivered annually to an altitude of 20 to 30 km is predicted to sufficiently offset the expected warming over the next century” at an estimated cost of only 2 billion to 8 billion dollars annually. That amount is not even one one-hundredth(.01) of the estimated $3.5  trillion annual costs of the current global warming anti-carbon mitigation effort, as reported by the International Energy Agency in the Economist article.

But solar geoengineering has some complications too.  Which entity is going to determine how much warming will be allowed to occur?   If any country can control global warming by injecting aerosols high in the stratosphere that ultimately spreads around the world, then that country has control of the world’s thermostat.  While Russia and other countries and regions may want the world warmer so it can raise more grain and other agricultural crops, Holland and islands and low-lying countries along the oceans may want the world cooler to stop rising oceans.  And most countries and communities in the world will have conflicting interests.  For example, in Florida, the tourist industry will want stable ocean levels for its beaches and waterfront hotels and homes.  But as reported in the PBS news broadcast on Sunday, March 31, 2019, rising temperatures and ocean levels along the Florida east coast are allowing the Mangrove trees to migrate north protecting the shores from erosion and providing sanctuaries for fish and wildlife.  Further research would probably demonstrate thousands of such conflicting interests.    If any country that wants to lower the earth’s temperature, for whatever reason, can turn down the earth’s thermostat by injecting aerosols into the atmosphere, which as previously noted is not that expensive, then it could become a “race to the bottom” by the country that wants the coolest world temperature.   Not a good prospect!

But is that any different than the current world situation where a majority of the countries are joining to try and stop global warming by limiting carbon dioxide emissions?  And as the world tries to establish carbon controls, India and China, and yes the United States, continue to increase CO2 output, while Russia, and other countries, benefit from global warming.   If most of the countries of the world think they can agree to invest hundreds of trillions of dollars in this century to reduce carbon dioxide emissions in order to control global warming (unsuccessfully so far), then they ought to be able to agree to invest even a small part of that capital on solar geoengineering research to control warming.   Some of those aerosols might even be positioned, like satellites, in geosynchronous orbits over equatorial areas where most global warming occurs, cooling the equatorial areas while allowing the northern climates to warm to improve agricultural production.

With so much at stake, it would seem prudent to divert at least some of the hundreds of trillions of dollars now being proposed to fight carbon-induced global warming into solar geoengineering research.  But it won’t be easy.  Most of the scientific community and world governments and community leaders are intellectually, economically and politically committed to spending hundreds of trillions of dollars to eliminate carbon from our energy mix, without any idea where those trillions will come from.  Never-the-less, suggesting that some funding be diverted to other possible alternatives to control global warming will face opposition from heavily entrenched vested economic and social interests.  However, solar geoengineering if successful would be infinitely cheaper than trying to eliminate carbon from the world’s energy supply, which may not even be economically feasible.  And allowing carbon dioxide to increase in the atmosphere would increase food production to feed the increasing world population.

It is important to recognize that burning carbon to generate energy does create air pollutants. Air pollution is a serious problem that must be addressed.  The removal of many air pollutants is currently being required in industry and automobiles.  However, public health requires that much more needs to be done to improve air quality, particularly in cities.

However, carbon dioxide is not an air pollutant!  It has been described as “the gas of life”.  It supports all plant life on this planet thru photosynthesis.  Without carbon dioxide, there would be no plants.  Without plants, there would be nothing for humans and animals to eat and no oxygen to breath.  Humans simply wouldn’t exist.

So if solar geoengineering can control global warming while allowing carbon dioxide to increase, it should at least be given a try before the world attempts to deconstruct the current carbon energy system.  But even if the world does decide to move ahead with a so-called “green” non-carbon revolution (an oxymoron–it’s carbon dioxide that makes things green), it first needs to answer two questions:  1) how much GDP is the world willing to sacrifice to deconstruct the current carbon energy system; and 2) where will the hundreds of trillions of dollars come from that it will take to create a non-carbon energy system.  Until those two questions can be answered satisfactorily and economically, there is only one practical choice–use the current carbon energy system, but invest and regulate it to improve air quality, particularly from autos and coal-fired plants.

By David Cooper

A very important aspect of practicing law (of practicing life, really) is maintaining your mental and emotional well-being often referred to as “Attorney Wellness.”  The Idaho State Bar and the legal profession as a whole have become acutely aware of the need to maintain and enhance attorney wellness. 

The purpose of this article is to encourage you to take attorney wellness seriously.  While every situation is unique, most of us are in the best position to keep ourselves functioning in a healthy and productive manner.  We need to take responsibility.  If a burden becomes too great, we have to be prepared to take action.

Renewal as Strategy

One potential means of enhancing your wellness is to experience intentional and purposeful renewal.  In other words, make renewal a strategic part of your life.  The definition of renewal that comes closest to what I am referencing is “the replacing or repair of something that is worn out, run-down, or broken.”

The opportunity for renewal in its most basic form happens every single day when we crawl out of bed on at least a few hours of sleep, with fresh (or fresher) eyes than the night before.  If you are a morning person like me, have you noticed how problems that seemed insurmountable the night before are often not nearly as onerous the next morning?

Purposeful renewal can be found in events major and minor.  Passing the bar exam, starting a new job, or moving to a new location are all fairly obvious examples.  I am a runner – whatever form of exercise works for you can also provide renewal.

Time-related milestones can help us.  Recurring opportunities for renewal include:

• January 1^st of every year – that’s why we have “New Year’s” resolutions, right? 
• Your birthday – especially those birthdays ending in a zero (30, 40, 50, 60, 70, etc.).  These are a great reminder that the clock is ticking for all of us.  If we’re gonna do something, we can’t wait forever.
• The first day of every month, and even the Monday morning of every work week.  These days can essentially provide you with an excuse for starting over.

Renewal as Survival

If we live long enough, life will throw some significant challenges at us.  In my late teens, I was fortunate to survive a situation (a drowning accident) that took the lives of my parents and a brother and sister.  I’ve often thought that this tragedy forced me to find emotional survival tricks.  Renewal is one of them.  When a person is dealing with loss, you can end up in some dark places and need to find a way out.

Here are some of the things I think I learned along the way:

• Be nice to yourself – sometimes crazy is normal, depending on the circumstances.
• Find people you can be vulnerable around.  Probably obvious, but crucial. 
• Make sure to give to others when you can, because in challenging times you may need to be a taker.  Sometimes it’s okay to be selfish.  Pay it back (or forward) when you can.
• Don’t be afraid to “trial and error” your way through different possible means of helping yourself.  Not every solution works for every person.
• One of the most difficult lessons for me:  be humble.  You have a breaking point.  Sometimes you can’t actually do it all yourself.

Do you hate your job?  Find a new one.  Are you spending too much time at the office due to billable hours?  Find another way to get paid.  Are key relationships in your life not flourishing?  Re-prioritize.  Doing too much or too little of anything in your life?  Figure out the root problem and take control. In summary, having the imagination, strength, and strategies to find an excuse to start over can help us to enhance our lives, or let go of prior events and move forward.

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