Faith v. Faith

• Author: Martin Siegel
• Pages: 27-32

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Faith v. Faith

MARTIN SIEGEL

The author is with the Law Offices of Martin J. Siegel PC, in Houston, and is a senior editor of Litigation.

This is the “good faith” issue, and that’s a phrase we know well.

It’s a big tent covering candor to the court and adversaries, fair

and honest dealing, and so on. More deeply, as lawyers, we live

and breathe “faith in the system.” That is, confidence the legal

process will give us a fair hearing with a neutral arbiter and, at

least if a judge is deciding, a defensibly reasoned result.

But think like a regular person, and “faith” means something

else: religious conviction, belief in the unprovable, conscience.

What adherents call “a higher law.”

What happens when the two kinds of faith and law collide?

Twenty-five years ago, in a case I was handed as a newly mint-

ed government lawyer, they did. The case was probably the weird-

est one I’ll ever have, but it taught me useful, everyday lessons

in how to frame arguments; deal with difficult judges; and in the

end, accept defeat. More interestingly, it illustrated the uneasy

compromises that occasionally crop up between faith in earthly

justice and faith in the Almighty.

The case had its roots in the anti-abortion group Operation

Rescue, which staged mass blockades of women’s health clinics

in the late 1980s and early 1990s. Those disruptions and more

violent incidents, including the assassination of doctors and the

bombing of clinics, led Congress to enact the Freedom of Access

to Clinic Entrances Act (FACE), 18 U.S.C. § 248, in 1994. FACE

created federal civil and criminal liability for people who obstruct

access to reproductive health clinics.

Two veterans of Operation Rescue, a retired auxiliary bish-

op named George Lynch and a young Franciscan novice named

Christopher Moscinski, sat in the driveway of a clinic in subur-

ban Dobbs Ferry, New York, in 1995. They blocked the facility’s

driveway for 45 minutes before local police arrested and removed

them. It wasn’t the most egregious interference imaginable, but

Lynch and Moscinski prevented several patients from entering

the clinic. And it wasn’t their first attempt to stop abortions there

and elsewhere. They’d obstructed that facility several times be-

fore, once forcing their way inside, and participated in earlier,

larger blockades of other clinics with Operation Rescue. A few

days now and then in county jail and temporary restraining or-

ders weren’t having any effect, and that was precisely why the

federal statute had been enacted.

I was happy to get the case. I’d gone to the U.S. Attorney’s

Office wanting to do civil rights work but, like all new assistants,

spent my first few months getting my feet wet defending the

government in small tort cases and the like. Judge Jed Rakoff is a

leading voice in securities and business law, but surely he also re

-

members my first trial, in which I defended a Drug Enforcement

Administration agent sued for causing a fender bender. At some