GARCIA (SERGIO C.) ON ADMISSIONAmicus Curiae Brief of National Center for Lesbian Rights, et al.Cal.Jul 27, 2012 SUPRE= COURT COPY SUPREME COURT FILED Bar Misc. 4186 JUL 27 2012 $202512 Frank A. McGuire Clerk Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION APPLICATION FOR LEAVETO FILE BRIEF OF AMICI CURIAE AND BRIEF OF AMICI CURIAE NATIONAL CENTER FOR LESBIAN RIGHTS AND LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. IN SUPPORT OF ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA National Center for Lesbian Rights Shannon P. Minter (SBN 168907) Christopher F. Stoll (SBN 179046) RECEIVED Angela K. Perone (SBN 245793) 870 Market Street, Suite 370 JUL 18 2N12 San Francisco, CA 94102 CLE Telephone: (415) 392-6257 Rk SUPREME COURT Attorneysfor Amici Curiae National Centerfor Lesbian Rights andLambda Legal Defense and Educational Fund, Inc. . APPLICATION FOR LEAVETO FILE BRIEF Pursuant to Rule 8.520(f) of the California Rules of Court, Amici Curiae National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc. respectfully request this Court’s permissionto file the accompanying amicuscuriae brief in support of admission of Sergio C. Garcia to the State Bar of California. This application is timely made within thirty days (30) daysafter the filing of the Opening Brief of the Committee of Bar Examinersofthe State Bar of California Re: Motion for Admission of Sergio C. Garcia to the State Bar of California. Cal. Rules of Court, Rule 8.520(f)(2). I. IDENTITY OF AMICI CURIAE The National Center for Lesbian Rights (“NCLR”) is a national, non- profit legal organization dedicated to securing and protecting equalrights for the lesbian, gay, bisexual, and transgender (“LGBT”) communities, including LGBTpersons in immigrant communities who seek basic human dignities, including equal opportunities to earn professionallicenses. Lambda Legal Defense and Education Fund,Inc. (“Lambda Legal”) is the oldest and largest national legal organization dedicated to achieving full recognition ofthe civil rights of LGBT people and those living with HIV in 1 the United States. Through its Proyecto Iguladad, Lambda Legal serves Latino and Spanish-speaking LGBT and HIV-positive individuals across the United States, many ofwhom are immigrants. Il. INTERESTS OF AND ASSISTANCE OFFERED BY AMICI CURIAE NCLRservesconstituencies directly affected by the outcomeofthe decision in this case. NCLRhasaninterest in ensuring that undocumented immigrants who are LGBTare able to earn professionallicenses, including a license to practice law, if they meet the necessary requirements. NCLRalso has an interest in ensuring that California’s lawyers reflect the full diversity of California’s residents, including persons who are undocumented. As a non-profit legal organization, NCLR hassubstantial experience working with LGBT workers whorequire professional licenses to engage in particular occupations. The outcomeofthis case will directly affect how NCLRserves its undocumented clients seeking professional licenses. LambdaLegal has successfully litigated and participated as an amicus curiae in numerouscases affecting the rights ofLGBT people and,in particular, LGBT immigrants before this Court, the U.S. Supreme Court, and other state and federal courts, including recently serving as an amicus curiae in Arizona v. United States, a landmark Supreme Court case challenging 2 Arizona’s anti-immigrant law, SB 1070. Through its work, LambdaLegal has becomean expert on legal and policy issues affecting the LGBT community and,specifically relevant here, LGBT immigrants. Amici Curiae NCLR and Lambda Legalbelieve that their backgrounds, expertise, interests and views in connection with the issues presented in this case will be helpful in resolving the issues currently before this Court. Based on this background, Amici Curiae will focus on issues not yet briefed in this case regarding whetherthere exist any “public policy limitations .. . on an undocumented immigrant’s ability to practice law” or “other public policy concerns” that would arise from the granting of an undocumented immigrant’s application for admission to the Bar. This brief will examine how undocumented immigrants in this country and in California have faced unjust exclusionary laws, including unwarranted denial of professional licenses. Based on their experience, Amici Curiae will highlight for the Court how there has also been a long history of LGBT persons being denied professional licenses by state governments and being denied opportunities for government employment based on sexual orientation or genderidentity. Amici Curiae will further describe how discriminatory exclusion of LGBT persons from licensed professions and 3 government employment has now been repudiated repeatedly by courts and legislatures, and past exclusionary measures are now widely understood to have been based on biased, unfounded assumptions about the character of LGBTpersonsandtheirability to contribute to public life. Drawing on that history, Amici Curiae’s brief will address how the exclusion of undocumented immigrants from licensed professions often is based on similarly unfounded assumptionsthat likewise warrant repudiation. II. CONCLUSION For the foregoing reasons, the Amici Curiae National Center for Lesbian Rights and Lambda Legal respectfully request that this Court accept the accompanyingbrief for filing in support of admission of Sergio C. Garcia to the State Bar of California. Dated: July 18, 2012 Respectfully submitted, Unete k. Prone Angela K. Perone (SBN 245793) Shannon P. Minter (SBN 168907) ChristopherF. Stoll (SBN 179046) National Center for Lesbian Rights 870 MarketStreet, Suite 370 San Francisco, CA 94102 (415) 392-6257 4 TABLE OF CONTENTS BACKGROUND0...eeceecesesseeseeeeeeaeeesecaeecnecsecanenseesesseseseesecsseececssesasesecesecessessseenees 1 INTEREST OF AMICI CURIAE...ec eecccseeesesseeeeeseeeseeseeseseeseseeseesseenecenseeseneees 2 SUMMARY OF ARGUMENT.......ccecccccessessseseeeseeesesecenecseescecsecseeeseessesseseeessesesscees 4 ARGUMENT 00... cescccesecensceeessneesecesnecaessessesseessseesscessessseceeeesssesecessesseestesesssesssseaees 6 I. Biases Toward LGBTPersons and Undocumented Immigrants Have Resulted In Laws That Target Members of These Communities and Exclude Them From Public Life...cee6 II. Now-Repudiated Arguments For Denying Professional Licenses to LGBT PersonsAreInstructive For Why This Court Should Reject Similar Public Policy Arguments As Justifications For Denying Licenses to Practice Law to Undocumented Immigrant............c.ccccccscesssesscceseseeesecssessesssesenevsesenes 11 A. Undocumented Immigrants Are Capable ofAppreciating The Spirit OfAmerican Institutions .0.........ceceeeeeeseeeesseseeees 12 1. California Historically Denied Licenses to LGBT Professionals Based on Claims That They Were Morally Unfit... ecesesccsecseesessecesesssessesseesseceseeeees 13 2. Undocumented Immigrants Face Similar Arguments Based on Unfounded Perceptions of Immorality and Criminality 000.00. cscscsessceesensceseneees 23 B. Undocumented Immigrants Are Fully Capable of Upholding the Constitutions of the United States and California oo.e ee ceeeccncesececceseceeesescessesesceessseeeseeeeseessesssesscssenes 26 1, This Court Should Reject Any Public Policy Argument Premised on the False Assumption That Undocumented Immigrants Lack Loyalty to The United States occeeecessecesseeeesseeeseeeeeeeeeeeeenneeses 26 2. Undocumented Persons’ Immigration Status Does Not Make Them More Likely to Violate the Law......... 28 CONCLUSION2...cececceeeessesesscceseeeeceseecseecesaeesseessnsesesesesneesesssersseesesasensaeesegs 31 il TABLE OF AUTHORITIES CASES Application ofKimball (N.Y. Ct. App. 1973) 33 N.Y.2d 586 oo. ceeeccccccscccsecssesseeeseessecessnesseesssenees 19 Arizona v. United States (2012) U.S.__, No. 11-182, 2012 WL 2368661 ............eee 9, 10, 27 Ashlie v. Chester-Upland Sch. Dist. (E.D. Pa. May 9, 1979) No. 78-4037, 1979 U.S. Dist. LEXIS 12516... 16 Bar v. Kay (Fla. 1970) 232 S0.2d 378 oo... eeeecscesseeseesesssessesseessesseesseeesessescseseecneessesenens 20 Barnes v. City ofCincinnati (6th Cir. 2005) 401 F.3d 729 ooo ccccccsessesseseseeesesesesseeseeseeescsesesesseeseeseaees 22 Bad. ofEduc. v. Calderon (1973) 35 Cal.App.3d 490oieeeceeceecseeeeseeseeseseeseesecseseesesesesaeesseneaees 17 Bad. ofEduc. v. Jack M. (1977) 19 Cal.3d 691 oooeesceneesccseeseeeseacesesseeseeeeseeessesseessesceeeeasenssaees 18 City ofDallas v. England (Tex. App. 1993) 846 S.W.2d 957 ooo. eeseseseeeeseeseeseeeceeseeseeeeesesseesseeeseess 29 Comite de Jornaleros de Redondo Beachv. City ofRedondo Beach (9th Cir. 2011) 657 F.3d 936 oo... ececsessessessesseseesessseeseaseneseeecsesssseeesecseseses 10 Fla. Bd. ofBar Exam’rs v. Eimers (Fla. 1978) 358 S0.2d 7 ooo eececescesceeseeeeseceecseeseeseeseeseessessecsecsecseeseesesesseess 20 Florida Bar v. Kimball (Fla. 1957) 96 S0.2d 825 woo.cceeccecccccccssssseessssscsessssscsssecessecessseseaesevseeeessens 19 ill Gaylord v. TacomaSch. Dist. No. 10 (Wash App.Ct. 1977) 559 P.2d 1340 vocceccccccsccesseesscecssssecsseeeesreesseseees 7 Glenn v. Brumby (11th Cir. 2011) 663 F.3d 1312occccceseeeeeeeeeeeeseeseessecsseeeseesensseseeees 21 Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447oocececsceeseessecseeseeesseeseescesseeeeessecssseesaeeseseeseeens 30 In re Boyd (1957) 48 Cal.2d 69 oo... ecceccccccsssecssesseseseeeenseesseeseseeseessecenecesseessseenee 20, 21 Lawrence v. Texas (2003) 539 U.S. S558... cccscccsccesescecesseecessesseecesseeeeseessssscessecsesceesusensnss 7, 14 League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1997) 997 F.Supp. 1244 oo. cecscccseceeseeeseseecnseteseesseeeseeeseeeses 9 Morrison v. State Bd. ofEduc. (1969) 1 Cal.3d 214eeecceecneeseeseeeeecseeeeeesaeescesecaesetseeeeesseeseentens 16 Moser v. State Bd. ofEduc. (1972) 22 Cal.App.3d 988 oo... eeeeeeeeeceeeeeceesceeseeeesetseeaeesseetsceseesseeseeneens 17 People v. Lovato (1968) 258 CalApp.2d 290cc ceccccccsccsssessesscensesecesecesecsecestesessesesseceesseees 28 People v. Satchell (1971) 6 Cal.3d 28 occceceseeseeseceeeeseeeeeeecsesseesecsessessessasitneneesseaseesees 28 Plyler v. Doe (1982) 457 U.S. 202... eeccecceecestsesteesecesececeeeeeseeseeeaeeeseeseeesensesseeesees 8,9, 11 Purifoy v. State Bd. ofEduc. (1973) 30 CalApp.3d 187 oo... cccccsccescsssesseeseccsceseesseesscsecssssessscseeesseeneeens 16 Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 ooo. cceecccccscessesssecssecseeeseceseeseeseeeeeessecsesesseseessenseess passim Sarac v. State Bd. ofEduc. (1967) 249 CalApp.2d 58 uo... cceccecesecsecseesceeseesecssceesseseeseeesecseseeesesseeseseesteseeeatens 16 iv Schroer v. Billington (D.D.C. 2008) 577 F.Supp. 2d 293.0... cccccccsccscesssssssseseessessessesseseesesessseesase 21 Shahar v. Bowers (11th Cir, 1997) 114 F.3d 1097 oooceccsscsecssesseseeesessessecsessesseessesseaes 29 Singer v. U.S. Civil Serv. Comm’n (Oth Cir. 1976) 530 F.2d 247 oo. ecccccccsssessccssessesecssesseesecsecsessecseessenseses 14, 15 Smith v. City ofSalem (6th Cir, 2004) 378 F.3d 566 oeccccscescseessseesseseesesscseeesesesscsesscsessetecsesees 22 Ulane v. E. Airlines, Inc. (7th Cir. 1984) 742 F.2d 108) ooo ccccccscesceseeseeesesesseesssescssessessesescsenseenes 21 STATUTES Okla. Stat. tit. 70, § 6-103.5 occ cecccecseessesecssesesseseseeseeeeseeeseseeesesasesscsecssesseas 15 LAW REVIEW ARTICLES Abrams, Polygamy, Prostitution, and the Federalization ofImmigration Law (2005) 105 Colum.L.Rev. 641, 643ee ecccscseesecseeseeseeeseseeeceessesesseesesseessensesesens 24 Annand, Still Waitingfor the Dream: The Injustice ofPunishing Undocumented Immigrant Students (2008) 59 Hastings L.J. 683 .......ccccssseseteeseeeees 24, 25 Arriola, Faeries, Marimachas, Queens, and Lezzies: The Construction of Homosexuality Before the 1969 Stonewall Riots (1995) 5 Colum.J. Gender & L. 33 occeeeeesesseeseeececeseeseeseeseseeeesaeeeeseesesatsesseesesseseseeeseesasens 8 Canaday, “Who Is A Homosexual?”: The Consolidation ofSexual Identities in Mid- Twentieth-Century American Immigration Law (2003) 28 Law & Soc. Inquiry 351 oo. eeessesessenececseseceeseesesesessceceesesseesseeaeseaeesssssseseeeeseseesenees 8 Vv Cummings & Boutcher, Mobilizing Local Government Lawfor Low-Wage Workers (2009) 1 U.Chi.Legal F. 187 oo. cecceecccccceeesesseseeseeseseeeeeseesaeeeesseeeesesessseesecsaeeaees 7, 10 Eskridge, Body Politics: Lawrence v. Texas and the Constitution ofDisgust and Contagion (2005) 57 Fla.L.Rev. LOU... ccccccccsccesceseesesessessenecssecessesseenees 18 Finer, Gay and Lesbian Applicants to the Bar: Even Lord Devlin CouldNot Defend Exclusion, Circa 2000 (2000) 10 Colum.J. Gender & L. 231.....22 Gunlicks, Citizenship As A Weapon in Controlling the Flow of Undocumented Aliens: Evaluation ofProposed Denials ofCitizenship to Children of Undocumented Aliens Born in the United States (1995) 63 Geo.Wash.L.Rev. S51eee eeeceeseeccsesseeseeeessececeeeenecsecseeecseeeesseaeeseeseesaeees 28 Koppelman, Why Gay Legal History Matters (2000) 113 Harv.L.Rev. 2035............. 27 Kragh, Forging A Common Culture: Integrating California's Illegal Immigrant Population (2004) 24 B.C. Third World L.J. 373 .....ccccccccsccescesssesseesseeee 9 Mooney, The Searchfor A Legal Presumption ofEmployment Duration or Custom ofArbitrary Dismissal in California 1848-1872 (2000) 21 Berkeley J. Emp.& Lab. L. 633 oo. cccesscssesscessessessesscsscsseeessesseecssesseessessessesseseseeseeessentes 8 Moore, "Crimes Involving Moral Turpitude": Why the Void-for-Vagueness ArgumentIs Still Available and Meritorious (2008) 41 Cornell Int'l L.J. B13 cece ecescsecsceseecsseeeesaeeesaeeseeseesaesaceaecsesaeeaeeeseseeeesseesessaeeeseessseeesecessenees 24 Poirier, Hastening the Kulturkampf: Boy Scouts ofAmerica v. Dale and the Politics ofAmerican Masculinity (2003) 12 Law & Sexuality 271 .......... 19 vi Rivera, Our Straight-Laced Judges: The Legal Position ofHomosexual Personsin the United States (1999) 50 Hastings L.J. 1015 woo. ceeeesceeteeeeteeeseeeees 14 Ryan, The Unz Initiatives and the Abolition ofBilingual Education (2002) 43 B.C. L. REV. 487 occeecescecesessessceeeccessceresesscesseeeseeeseeeecsaeeaeceeeesneesaeeneeees 9 MISCELLANEOUS 60 Ops.W.Va.Atty.Gen 46 (1983)... ceccecceccesesseeccseesecseeececeeseesseeensaeeeneeeaees 15 Bouvier’s, Law Dict., Rawle’s Third Revision (8th ed. 1914), p. 2247 oo ceccccssccssecesesenseccsssseeeeseeseesesseseeseseceseeesseeeneeeses 21 Clendinen and Nagourney, Out for Good: The Struggle to Build a Gay Rights Movementin America (1999), p. 381 eeeesescecssecscesseesseeeeseeeseeeseececeseecseeeecseeeaeeneseeeceeesaeseeeeesensaes 19 Eskridge, Dishonorable Passions: Sodomy Lawsin America, 1861-2003 (2008),p. 103 oo eaescceseeecesseseecesecesceseeesaeeseeacensesseesueecesseaeceseeseaeseaeeeseseceeeseeeeeeeseneesas 6 Vil BACKGROUND Sergio C. Garcia was born in Mexico in 1977. When he wasonly seventeen monthsold, his parents brought him to California. He remained undocumentedin the United States until approximately 1986, when he returned with his parents to Mexico. In 1994, when he wasseventeen years old, Garcia’s parents brought him back to California and filed an immigration visa petition for him. Even thoughthe petition was approved in 1995, Garcia has been waiting for a visa to becomeavailable for almost eighteen years. Garcia has lived in the United States for over twenty years. He has no criminal record. He has obtained his high school, college and law school degrees in the United States. He has passed the California bar examination and has metall the requirements for admission. The Committee of Bar Examiners of the State Bar of California has since informed this Court of Garcia’s immigration status and recommendedhis admission to the California State Bar (“State Bar”). On May 16, 2012, the Court issued an Order to Show Cause to the Committee of Bar Examinersas to whyits pending motion for admission of Garcia to the State Bar should be granted. The Court ordered any submission by the Committee of Bar Examiners be 1 filed on or before June 18, 2012. It invited amici curiae to submit applications for permissionto file briefs in this proceeding. INTEREST OF AMICI CURIAE The National Center for Lesbian Rights (“NCLR”) is a national, non- profit legal organization dedicated to securing and protecting equalrights for the lesbian, gay, bisexual, and transgender (“LGBT”) communities, including LGBTpersons in immigrant communities who seek basic human dignities, including equal opportunities to earn professional licenses. NCLRhasaninterest in ensuring that undocumented immigrants who are lesbian, gay, bisexual or transgenderare able to earn professional licenses, including a license to practice law, if they meet the necessary requirements for certification. Lambda Legal Defense and Education Fund,Inc. (“Lambda Legal”) is the oldest and largest national legal organization dedicated to achieving full recognition of the civil rights of LGBT people and those living with HIV in the United States. Through its Proyecto Iguladad, LambdaLegal serves Latino and Spanish-speaking LGBT and HIV-positive individuals across the United States, many ofwhom are immigrants. Lambda Legal has successfully litigated and participated as an amicus curiae in numerous cases 2 affecting the rights of LGBT people and,in particular, LGBT immigrants before this Court, the U.S. Supreme Court, and other state and federal courts, including recently serving as an amicuscuriae in Arizona v. United States, a landmark Supreme Court case challenging Arizona’s anti-immigrant law, SB 1070. Through its work, Lambda Legal has become an expert on legal and policy issues affecting the LGBT community and, specifically relevanthere, LGBTimmigrants. This case presents questions regarding the opportunities that California will afford to undocumented immigrants to obtain licenses to practice law. Undocumented immigrants in this country and in California have long faced unfounded exclusionary laws, including unwarranted denials of professional licenses. Amici submit this brief to highlight for the Court that there is also a long history of LGBTpersons being denied professional licenses by state governments and being denied opportunities for government employment based on sexual orientation or genderidentity. Discriminatory exclusion of LGBTpersons from licensed professions and government employment has now beenrepudiated repeatedly by courts and legislatures, and past exclusionary measures are now widely understood to have been based on biased, unfounded assumptions about the character of 3 LGBTpersonsandtheir ability to contribute to public life. Undocumented immigrants have often faced similar baseless assumptions, and such assumptions should likewise be rejected as grounds for excluding undocumented immigrants from professionallicenses. SUMMARYOF ARGUMENT Undocumented immigrants and lesbian, gay, bisexual and transgender (“LGBT”) persons have both experienced histories of exclusion, bias, and discrimination. Those histories, while distinct and unique, are similar in important ways. For both groups, discrimination has frequently been rooted in erroneous assumptions that membersofthese groupsare unfit for particular professionsor are habitual lawbreakers wholack the moral values or loyalties of ordinary Americans. The country’s long and unfortunate history of excluding LGBT persons from various professions and denying or revoking their professional licenses offers instructive context for the present case because such discriminatory treatment ofLGBT persons has now been widely repudiated, including in California. Unfortunately, undocumented immigrants in many cases continue to face exclusion from licensed professions without adequate justification. In addition, the LGBT community encompasses many immigrants, including those who are undocumented. Many LGBT immigrants face unique barriers to participation and inclusion in public life based on their immigration status and sexual orientation or gender identity. These persons are a vital part of our State and should not unjustifiably be denied the same chanceas others to contribute, work, and belong. NCLRand Lambda Legal submit this amicusbrief to address questions 4 and 5 in the Court’s May 16, 2012 Order, regarding whether there exist any “public policy limitations . . . on an undocumented immigrant’s ability to practice law”or “other public policy concerns” that would arise from granting an undocumented immigrant’s application for admission to the Bar. This brief will examine, as applied here to undocumented immigrants, two arguments that this Court rejected in Raffaelli v. Committee ofBar Examiners asto the eligibility of a permanent legal resident to be admitted to the California Bar: (1) the argumentthat a non-citizen cannot appreciate the spirit of Americaninstitutions, and (2) the argumentthat a non-citizen cannot commit to support the Constitutions of the United States and California. (Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288, 296-98[101 Cal.Rptr. 896] (hereafter Raffaelli).) 5 Similar unfounded policy arguments were once used to deny LGBTpersons professional licenses, but today those barriers have largely fallen. We urge the Court to heed the lessons learned from the historical denial of professional licenses to permanent residents and LGBTpersonsandreject such justifications as the basis for any legal or public policy impedimentto granting an otherwise qualified, undocumented immigranta professional license to practice law. ARGUMENT I. BIASES TOWARD LGBT PERSONS AND UNDOCUMENTED IMMIGRANTSHAVE RESULTED IN LAWS THAT TARGET MEMBERS OF THESE COMMUNITIES AND EXCLUDE THEM FROM PUBLIC LIFE Both immigrants and LGBTpersonshave long been targets for exclusionary laws and persecution under discriminatory criminalstatutes. For example, California passed lawsin the early 1950’s that specifically targeted membersofthe LGBT community, including laws prohibiting 99 66“sodomy,” “oral copulation” or “lewd vagrancy.” (Eskridge, Dishonorable Passions: Sodomy Lawsin America, 1861-2003 (2008), p. 103.) In addition to facing criminal penalties, persons arrested or convicted under these statutes were often publicly described as “perverts,” banned from churches, educational institutions, and other public places, and terminated from their 6 jobs. (See, e.g., Gaylord v. Tacoma Sch. Dist. No. 10 (Wash App. Ct. 1977) 559 P.2d 1340, 1341-42 [teacher discharged only a few weeksafter his school learned he was gay].) Even after California repealed its laws criminalizing same-sex intimate relationships, LGBT persons continuedto face prosecution under other state sodomy lawsuntil the United States Supreme Court invalidated those laws in Lawrence v. Texas (2003) 539 U.S. 558, 578 [123 S.Ct. 2472, 156 L.Ed.2d 508]. Immigrants likewise have long beenthe targets of both facially discriminatory laws and purportedly neutral laws that were in fact intended to single them out for harassment and exclusion. For example, many local governments developed loitering laws in responseto anti-immigrant fervor about immigrants on street corners and in other public spaces seeking work as day laborers. (See Cummings & Boutcher, Mobilizing Local Government Lawfor Low-Wage Workers (2009) 1 U.Chi.Legal F. 187, 213.) In the mid- 1850’s, the California Legislature passed laws targeting Spanish-speaking residents, including a ban on pastimes associated with Californios (Spanish- speaking California natives) and an anti-vagrancyact called the “Greaser Act.” (Mooney, The Searchfor A Legal Presumption ofEmployment Duration or Custom ofArbitrary Dismissal in California 1848-1872 (2000) 7 21 Berkeley J. Emp. & Lab. L. 633, 650.) Immigration officials also used convictions for “disorderly conduct”or “loitering” in public parks or bathroomsto exclude immigrants from the United States, arguing that these vaguely defined offenses constituted crimes of “moral turpitude.” (See Canaday,“Who Is A Homosexual?”: The Consolidation ofSexual Identities in Mid-Twentieth-Century American Immigration Law (2003) 28 Law & Soc. Inquiry 351, 360-61.) Later, police used these same anti-vagrancy and loitering laws to harass LGBT personsandjustify police raids on LGBT gathering places. (See Arriola, Faeries, Marimachas, Queens, and Lezzies: The Construction ofHomosexuality Before the 1969 Stonewall Riots (1995) 5 Colum. J. Gender & L. 33, 64.) Lawstargeting immigrants have continuedto be enacted in recent times. For example, in 1975 Texas revised its Education Code to permit local school districts to deny enrollment to undocumented children and to withhold state funds for the education of undocumented children. (Plylerv. Doe (1982) 457 U.S. 202, 205 [102 S.Ct. 2382, 72 L.Ed.2d 786].) In invalidating this Texasstatute, the United States Supreme Court held that “Tb]y denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic 8 possibility that they will contribute . . . to the progress of our Nation.” (/d. at p. 223.) In 1994, California voters passed Proposition 187, which banned the delivery of health, education, and social services to undocumented immigrants. (Kragh, Forging A Common Culture: Integrating California's Illegal Immigrant Population (2004) 24 B.C. Third World L.J. 373, 393.) Even after a federal district court held that most of the provisions of Proposition 187 were unconstitutional, League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1997) 997 F.Supp. 1244, 1261, ballot initiatives continued to target undocumented immigrants for adverse treatment. (Ryan, The Unz Initiatives and the Abolition ofBilingual Education (2002) 43 B.C. L. Rev. 487, 501.) Proposition 227, for example, imposed new burdens on immigrants by mandating thatall public instruction be conducted in English, with few exceptions. (/bid.) While lawstargeting the private relationships and public gatherings of LGBTpersons have waned,particularly after Lawrence v. Texas, the use of criminal laws to target undocumented persons continues. In 2010, Arizona enacted SB 1070, a law that criminalized undocumented immigrants who seek workorfail to carry proof of legal immigration status. (Arizonav. United States (2012) U.S.__, No. 11-182, 2012 WL 2368661, at pp. *9- 9 10. [132 S.Ct. 2492, _].) The law also allowed police to make warrantless arrests of any person the officer had probable cause to believe had “committed any public offense that makes the person removable from the United States.” (/d. at p. *13.) While the United States Supreme Court recently invalidated these sections of the Arizona law,it declined in the case before it to strike down anothersection of the law requiring a police officer to make a “reasonable attempt” to determine the immigrationstatus of a person arrested, stopped or detained ifthe officer has a “reasonable suspicion”that the person is undocumented. (/d. at pp. *15, 17.) Local governments have also renewedefforts to pass anti-loitering laws targeting day laborers. (See, e.g., Comite de Jornaleros de Redondo Beachv. City of Redondo Beach (9th Cir. 2011) 657 F.3d 936, 950 [striking down anti-day laborer law on free speech ground]; see also Cummings & Boutcher, supra, 1 U.Chi.Legal F. at p. 213 [discussing how local governments have passed anti-solicitation ordinances undertheir local police power to remove day laborers from seeking work onthestreets].) In sum, both immigrants and LGBT people have been targeted by discriminatory lawsthat seek to exclude them from participation in public life, and that history strongly suggests that attempts to exclude 10 undocumented persons from professional licensing are “morelikely . . . to reflect deep-seated prejudice... than... rationality.” (Plyler v. Doe, supra, 457 U.S. at p. 218 fn.14.) Ii. NOW-REPUDIATED ARGUMENTSFOR DENYING PROFESSIONAL LICENSES TO LGBT PERSONS ARE INSTRUCTIVE FOR WHY THIS COURT SHOULD REJECT SIMILAR PUBLIC POLICY ARGUMENTSAS JUSTIFICATIONS FOR DENYING LICENSES TO PRACTICE LAW TO UNDOCUMENTED IMMIGRANTS Amongthe mostsignificant ways that LGBTpersonshistorically suffered discrimination wasthe denial and revocation of professional licenses. Courts and legislators denied professional licenses to LGBT persons based on claimsthat they were morally unfit to perform a particular job or incapable of abiding by the law. Undocumented immigrants have faced similar false and stigmatizing perceptions of criminality or moral unfitness based solely on their immigration status. In Raffaelli v. Committee ofBar Examiners, the Committee of Bar Examiners (“Committee”) argued that several state interests justified denying admission to the California bar to a permanent legal resident who wasnot a United States citizen. Among other things, the Committee argued that: (1) a lawyer whois a non-citizen cannot “appreciate the spirit of American institutions,” and (2) a lawyer whois a non-citizen cannot take an 11 oath to support the Constitutions of the United States and California. (Raffaelli, supra, 7 Cal.3d at pp. 296-98.) This Court found such arguments unconvincing and rejected them. (/bid.) While courts had previously accepted similar arguments for denying professional licenses to LGBT persons, those arguments likewise have been rejected over the past 40 years, and today there are few jurisdictions in America, if any, where simply being lesbian, gay, bisexual, or transgenderis regarded as a basis for exclusion from professional licensing. Just as these policy arguments no longer prevent permanent residents or LGBTpersons from becominglicensed attorneys, this Court should now reject such policy arguments as applied to undocumented immigrants. A. Undocumented Immigrants Are Capable of Appreciating the Spirit of American Institutions. In Raffaelli, the Committee of Bar Examiners argued that non-United States citizens should be excluded from the State Bar of California because they would be unable to “appreciate the spirit of Americaninstitutions,” as they supposedly failed to understand the values of the American governmental and social system. (Raffaelli, supra, 7 Cal.3d at p. 296.) Implicit in this argument was the assumption that immigrants are “outsiders” wholack the same moral and social values as American citizens. LGBT 12 persons havebattled similar assumptionsin fighting to obtain professional licenses. While these stereotypesstill persist in society, this Court has rejected this “outsider” argumentas applied to permanentresidents and LGBTpersons, and the Court should similarly reject it as a basis to deny undocumented immigrants a professional license to practice law. 1. California historically denied licenses to LGBT professionals based on claimsthat they were morally unfit. Many professional licenses include a moralfitness test that excludes individuals based on gross immorality, immoral conduct, unprofessional conduct, or conduct involving moral turpitude. In the 1950s and 1960s, California was one of many states that disciplined doctors, dentists, pharmacists, embalmers andguardians for “gross immorality.”' Convictions of crimes involving “moral turpitude” also prompted disciplinary action against attorneys, chiropractors, dentists, doctors, physical therapists, optometrists, pharmacists and engineers.” Licensing boards applied these terms to private consensual sexual acts between people of the same sex and ' (Bus. & Prof. Code §§ 2361(d) [doctors], 1680(8) [dentists], 3105 [optometrists], 4350.5 [pharmacists], 7698 [funeral directors and embalmers] (West 1954); Cal. Probate Code § 1580(4) [guardians] (West 1954).) * (Bus. & Prof. Code §§ 6101 [attorneys], 1000-10b [chiropractors], 1679 [dentists], 2383 [doctors], 2685(d) [physical therapists], 3105 [optometrists], 4214 [pharmacists], 6775 [engineers] (West 1954).) 13 thus denied and revokedprofessional licenses to LGBT persons based on their purported lack of moralfitness. (Rivera, Our Straight-Laced Judges: The Legal Position ofHomosexual Personsin the United States (1999) 50 Hastings L.J. 1015, 1078.) LGBT persons convicted understate sodomy laws wereoften barred from obtaining licenses in professions ranging from medicine to interior design. (See Lawrence v. Texas, supra, 539 U.S.at p. 581 (conc. opn. of O’Connor, J.) [noting that if petitioners’ sodomy convictions were upheld they would disqualify them from orrestrict their ability to engage in a variety of professions, including medicine,athletic training and interior design].) Historically, courts reserved someoftheir harshest judgmentfor LGBTpersons whoopenly expressed their sexualorientation, viewing these employees as flouting the values of the American public and flagrantly disregarding moral standards. For example, in 1972, John Singer, a typist at the Equal Employment Opportunity Commission was dismissedafter he responded to charges that he “flaunted”his sexuality by allegedly kissing a manat a previous workplace, identifying himself as gay in a newspaper interview, and applying for a marriage license with another man. (Singerv. U.S. Civil Serv. Comm’n (9th Cir. 1976) 530 F.2d 247, 249, vacated (1977) 14 429 U.S. 1034.) The Ninth Circuit affirmed the EEOC’s decision that by “flaunting his homosexualwayoflife,” he “lessened public confidence”in the government’s ability to conduct its business. (/d. at p. 255.) LGBTteachers faced particular scrutiny under moral fitnesstests. Manystates expressly prohibited LGBT persons from teaching. For example, the West Virginia Attorney Generalstated in 1983 that gay teachers in West Virginia would be considered “immoral” under West Virginia law and thus dismissed from their jobs. (60 Ops.W.Va.Atty.Gen 46 (1983).) He noted that even if “homosexual and lesbian behavior”is legal, it is “strongly contrary to the moral code,” and “violate[s] community standards of acceptable sexual behavior.” (/bid.) Until 1990, an Oklahoma statute similarly prohibited lesbians, gays, and bisexuals from teaching. (Okla. Stat. tit. 70, § 6-103.5 [repealed in 1989].) The Oklahomastatute provided that “a teacher, student teacher or teacher’s aid may berefused employment or reemployment, dismissed, or suspendedafter a finding that the teacher or teacher’s aid has engaged in public homosexual conduct or activity.” (/bid.) Transgenderteachers were also viewedas violating moral fitness tests, particularly if they underwent surgery. (See, e.g., Ashlie v. Chester-Upland Sch. Dist. (E.D. Pa. May 9, 1979) No. 78-4037, 1979 U.S. 15 Dist. LEXIS 12516, at p. *2 [noting school’s dismissal of transgender teacher after she underwent surgery because of purported “improper conduct” and “immorality”].) In 1967, the California Court of Appeal affirmed the revocation of a teacher’s credential after he was convicted of “lewd or dissolute conduct” under the California Penal Codefor soliciting sex from a male undercover police officer. (Sarac v. State Bd. ofEduc. (1967) 249 Cal.App.2d 58, 60-61 [57 Cal.Rptr. 69].) The court noted the following: Homosexual behavior has long been contrary and abhorrent to the social mores and moral standards of the people of California as it has been since antiquity to those ofmany other peoples. It is clearly, therefore, immoral conduct within the meaning of Education Code, section 13202. It may also constitute unprofessional conduct within the meaning of that same statute as such conductis not limited to classroom misconduct or misconduct with children. It certainly constitutes evidence of unfitness for service in the public school system within the meaning ofthat statute. (Id. at p. 62.) Even after this Court required a nexus between alleged immoral conduct and a teacher’s fitness to teach in Morrison v. State Bd. of Educ. (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175], California courts continued to uphold the revocation of teaching credentials when teachers were convicted of crimes involving consensual sexual conduct with someone of the same sex. (See e.g. Purifoy v. State Bd. ofEduc. (1973) 30 Cal.App.3d 187, 189, 16 194 [106 Cal.Rptr. 201] [upholding revocation of a male teacher’s credentials without a fair hearing on his fitness to teach because he had been convicted under an anti-loitering statute after he engaged in sexual conduct with another man in a public restroom]; Moser v. State Bd. ofEduc. (1972) 22 Cal.App.3d 988, 989-90 [101 Cal.Rptr. 86] [upholding revocation of a teaching license of a male teacher who engaged in consensual sexualactivity with another male because his actions were “unprofessional,” “immoral,” and involved acts of “moral turpitude” thus establishing his “unfitness to teach’’].) One California appellate court even upheld a school board’s revocation of a teacher’s credentials after he was acquitted of violating a statute prohibiting oral copulation. (See Bd. ofEduc. v. Calderon (1973) 35 Cal.App.3d 490, 497 [110 Cal. Rptr. 916].) In Calderon, Marcus Morales Calderon, a teacher at Los Angeles City College, was arrested and charged with violating a statute prohibiting oral copulation after engaging in sexual activity with another man. (/d. at p. 492.) Calderon was eventually acquitted of the charges, but the school refused to reinstate him without court review. (/bid.) The Court of Appeal upheld his dismissal. (/bid.) 17 Ongoing refusals by lower courts to reverse teaching credential revocations and dismissals led this Court to clarify that, under its decision in Morrison, even teachers who were convicted of criminal sex offenses had a right to a fitness hearing and that “proof of the commission of a criminal act does not alone demonstrate the unfitness of a teacher but is simply one ofthe factors to be considered.” (Bd. ofEduc. v. Jack M. (1977) 19 Cal.3d 691, 702, fn.6 [566 P.2d 602].) This Court found unpersuasive the Board of Education’s argumentin Jack M. that a gay teacher’s conviction under a morality law automatically demonstrated his unfitness as a teacher because of his purported disrespect for the law. (/bid.) Evenafter this Court decided these cases, LGBT teachers (and their allies) continued to face persecution when California Senator John Briggs introduced an initiative to prohibit gays and lesbians (and their heterosexual allies) from working in California’s public schools. (Eskridge, Body Politics: Lawrence v. Texas and the Constitution ofDisgust and Contagion (2005) 57 Fla.L.Rev. 1011, 1018.) Senator Briggs portrayed LGBT persons as “disgusting people and predatory child molesters.” (Ubid.) His campaign distributed a pamphlet with a young boy lying in a pool of blood and warned voters to “protect your family from vicious killers and defend your children 18 from homosexual teachers.” (/d. at p. 1018 [citing Clendinen and Nagourney, Out for Good: The Struggle to Build a Gay Rights Movementin America (1999), p. 381].) While the Briggs Initiative ultimately failed, it wasillustrative of continued attempts to exclude LGBT persons from professional life based on assumptions that LGBT persons lacked the same moral values as other Americans. (Poirier, Hastening the Kulturkampf: Boy Scouts ofAmerica v. Dale and the Politics ofAmerican Masculinity (2003) 12 Law & Sexuality 271, 288.) LGBTattorneys were also targeted by moral fitness requirements. For decades, manystates denied and revoked attorney licenses of lesbians and gay men becauseoftheir sexual orientation. In one case, after an attorney wasarrested underFlorida’s sodomy law in 1956, Florida revoked his license to practice law. (Florida Bar v. Kimball (Fla. 1957) 96 So.2d 825, 825.) Seventeen years later, New York denied the same attorney a license to practice in that state based on his sodomycharge in Florida, even though Florida had declared the statute unconstitutional two years before he applied for admission in New York. (Application ofKimball (N.Y. Ct. App. 1973) 33 N.Y.2d 586, 587-88 [301 N.E.2d 436] [noting that the New York Legislature prohibited consensual sodomy as “deviate sexual intercourse” 19 and no court had yet ruled New York’s statute unconstitutional]; see also Bar v. Kay (Fla. 1970) 232 So.2d 378, 379 [disbarring a man convicted of indecent exposure for engaging in consensual sexual activity with another man in a public place].) Both New York and Florida appellate courts eventually reversed their state bars’ decisions to preclude admission of attorneys based on their sexualorientation alone. (See e.g. Fla. Bd. ofBar Exam’rs v. Eimers (Fla. 1978) 358 So.2d 7, 9-10 [holding that Florida cannot deny bar admission based on a candidate’s “mere preference for homosexuality” and instead must show a “substantial nexus betweenhis antisocial act” and his “permanentinability . . . to live up to the professional responsibility and conduct required of an attorney”].) California similarly precluded LGBT persons from practicing law by revoking professional licenses after individuals were charged with or convicted of sodomy or vagrancy. For example, in a 1957 case, an attorney wasconvicted of violating California’s statute prohibiting vagrancy after he engaged in sexual conduct with another man in public. (Jn re Boyd (1957) 48 Cal.2d 69, 69 [307 P.2d 625].) The Court ordered that Boyd be suspended from practicing law for three years. ([bid.) Even though Boyd’s conviction under the vagrancy statute was a misdemeanoroffense, the Court 20 determined that his actions involved “moral turpitude,” whichit defined as “an act of baseness, vileness or depravity in the private and social duties which a man owesto his fellow manor to society in general, contrary to the accepted and customary rule of right and duty between man and man.” (/d. at p. 70 [citing 2 Bouvier’s, Law Dict., Rawle’s Third Revision (8th ed. 1914), p. 2247].) Transgenderpeople also have long faced discrimination that unfairly barred them from manyprofessions. In 1984, for example, the Seventh Circuit Court of Appeals upheld Eastern Airline’s decision that Karen Frances Ulane could no longer be a pilot because she had undergone a gendertransition. (Ulane v. E. Airlines, Inc. (7th Cir. 1984) 742 F.2d 1081, 1087.) Even today, transgender people face barriers to working in many professions solely because oftheir transgenderstatus. (See, e.g., Glenn v. Brumby (11th Cir. 2011) 663 F.3d 1312, 1321 [transgender womanprevailed on equal protection claim after being terminated from herposition as an editor in the Georgia General Assembly's Office of Legislative Counsel]; Schroerv. Billington (D.D.C. 2008) 577 F.Supp.2d 293, 300-02 [transgender applicant prevailed on sex discrimination claim after being denied employmentat Congressional Research Service on the pretext that her 21 transition raised questions abouther trustworthiness and ability to retain a security clearance, among other things]; Barnes v. City ofCincinnati (6th Cir. 2005) 401 F.3d 729, 737 [transgender police officer prevailed on sex discrimination and equalprotection claims after her demotion]; Smith v. City ofSalem (6th Cir. 2004) 378 F.3d 566, 573 [transgenderfirefighter prevailed on sex discrimination andretaliation claims whena fire department suspendedherafter she informed a supervisor about her gender identity and transition].) All of these cases underscorethe historical stigma against LGBT persons that for decades fueled false assumptionsthat they were incapable of modeling the moral values required of a licensed professional. While many professionsstill initiate disciplinary proceedings against workers who engage in “gross immorality” or crimes of “moral turpitude,” the once common application of these prohibitions to lesbians and gayshaslargely ended, and professionals no longer face the same persecution in their professions simply for being gay. (See Finer, Gay and Lesbian Applicants to the Bar: Even Lord Devlin CouldNot Defend Exclusion, Circa 2000 (2000) 10 Colum. J. Gender & L. 231, 260 [noting that gay and lesbian applicants “presently havelittle to fear from Bar examiners and character 22 committees” that their sexual orientation will deny them professional licenses] [internal citations omitted].) 2. Undocumented immigrants face similar arguments based on unfounded perceptionsof immorality and criminality. In Raffaelli, supra, 7 Cal.3d at page 296, this Court rejected the Committee of Bar Examiner’s argument that non-citizen permanent residents were unable to “appreciate the spirit of American institutions” because they allegedly lacked understanding of the theory and practice of the American governmental and social system. The Committee’s argument suggested that immigrants were “outsiders” who had such a different value system that they would be unable to appreciate American social and governmental values. (/bid.) This Court rejected the Committee’s argument in Raffaelli and should equally reject similar policy arguments that may be offered with respect to other immigrants, including undocumentedpersons. The Committee’s argumentin Raffaelli that non-citizens are unable to “appreciate the spirit of American institutions” reflected an unstated assumption that non-citizens have different social and moral values than American citizens. Similar in some waysto the history described above regarding the LGBT community, undocumented immigrants have faced 23 persistent discriminatory and stigmatizing social attitudes that paint them as morally corrupt or unfit. (See Annand, Still Waitingfor the Dream: The Injustice ofPunishing Undocumented Immigrant Students (2008) 59 Hastings L.J. 683, 689 [hereafter Annand].) Just as vague morality standards were used to exclude LGBTpersonsfrom professionallife, immigrants have faced arbitrary treatment based on amorphousstandards that permit deportation based on conviction for crimes involving “moral turpitude.” (See Moore, “Crimes Involving Moral Turpitude": Why the Void-for-Vagueness Argument Is Still Available and Meritorious (2008) 41 Cornell Int'l L.J. 813, 816 (2008) [noting that since 1891, courts and immigration officers have deported and excluded tens of thousands of immigrants through accusations of moral turpitude, while thereis little consistency in the definition of such crimes].) Indeed, the same vaguely worded standardsthat led to the exclusion of LGBTpersons from various forms of employmentalso targeted immigrants. (See, e.g., Abrams, Polygamy, Prostitution, and the Federalization ofImmigration Law (2005) 105 Colum.L.Rev. 641, 643 [describing how the Page Law,repealed in 1974, which banned women from immigrating to engage in prostitution or 24 for other lewd or immoral purposes, led to the exclusion of almostall immigrant Chinese women].) Undocumented immigrants also face societal prejudice that they are immoral, or even criminals, based on their immigration status alone, even though entering the United States without immigration authorization is a civil infraction, not a criminal violation. (See Annand, supra, at pp. 689-90 [finding that undocumented immigrants are often labeled “immoral” or “criminals” for entering the United States without authorization].) Just as misdemeanorconvictions for vagrancy or sodomy were once used to associate LGBTpersons with “immoral conduct”andjustify the denial of professional licenses, undocumented immigrants continue today to suffer from similar unfounded associations with immorality or criminality based solely on their immigration status. Such assumptions permeated the policy arguments in Raffaelli as to why immigrants should be precluded from practicing law in California. This Court rightfully rejected such arguments in Raffaelli as applied to permanentresidents, and it should similarly reject any such policy concerns as they apply to undocumented immigrants. 25 B. Undocumented Immigrants Are Fully Capable of Upholding the Constitutions of the United States and California. In Raffaelli, supra, 7 Cal.3d at page 298, the Committee of Bar Examiners argued that non-citizens should be denied licenses to practice law because they would be incapable of honestly taking an oath to support the Constitutions of the United States and California. The Committee argued that because an immigrant remainsa national ofhis native land, “he cannot be loyal to the United States.” (/bid.) The Committee’s argumentalso presumed that immigrants would be unable to comply faithfully with federal and state law merely becauseoftheir immigration status. This Court rejected the Committee’s arguments and the erroneous assumptions upon which they were premised andruled that non-citizens are eligible for California bar admission. (/d. at p. 299.) This Court should equally reject such arguments and assumptionshere. | 1. This Court should reject any public policy argument premised on the false assumption that undocumented immigrants lack loyalty to the United States. This Court held in Raffaelli, supra, 7 Cal.3d at page 298, that there were no rational grounds for believing that non-citizen bar applicants lacked loyalty to the United States. This Court cited the numerous contributions of 26 immigrants to this country and noted that an immigrant does not lack a “stake in the economic and social fortune of the state merely because the federal law denies him the right to naturalization.” (/bid.) The same reasoning applies to undocumented applicants for bar admission. There is no reason to assumethat they lack a stake in California’s economic and social fortune. (See Arizona v. United States, supra, WL 2368661, at pp. *9- 10 [The history of the United States is in part madeofthe stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”].) This is particularly true for Mr. Garcia, who has spent muchofhis childhood and adult life in the United States, including almost eighteen years waiting to obtain a visa. Similar fears of disloyalty led to the exclusion ofLGBT persons from federal jobs in the State Department during the McCarthy era. (See Koppelman, Why Gay Legal History Matters (2000) 113 Harv.L.Rev. 2035, 2039, reviewing Eskridge, Gaylaw: Challenging the Apartheid of the Closet (1999) p. IX, 470 [noting that 119 employees werefired in the State Department for homosexuality as perceived threats to the country’s loyalty and security].) While arguments that LGBT personsare inherently disloyal hold little influence today, such false conceptions continue to haunt 27 undocumented immigrants. (See Gunlicks, Citizenship As A Weapon in Controlling the Flow of UndocumentedAliens: Evaluation ofProposed Denials ofCitizenship to Children of Undocumented Aliens Born in the United States (1995) 63 Geo.Wash.L.Rev. 551, 572 [criticizing social biases against undocumented immigrants that assumethat all membersofthis group lack allegiance and loyalty to the United States].) This Court should reject any such policy arguments here. 2. Undocumented persons’ immigration status does not make them morelikely to violate the law. The Committee of Bar Examiners argued in Raffaelli, supra, 7 Cal.3d at page 297, that immigrants would be unable to honestly take an oath to uphold the state and federal Constitutions because they would be incapable of following the law. In rejecting the Committee’s argument, this Court recognized that there is no rational basis for believing that non-citizens “lack a commitmentto abide by the laws of the land.” (/d. at p. 299.) It further noted that a person does not “show a tendency towards a crime, simply becauseheis not a citizen of this country.” (/d. at p. 299 [citing People v. Lovato (1968) 258 Cal.App.2d 290, 293 [65 Cal.Rptr. 638], disapproved on other grounds by People v. Satchell (1971) 6 Cal.3d 28 [489 P.2d 1361].]) 28 In the past — and even quite recently - LGBT persons encountered similar arguments that they were unfit to perform certain jobs because their very status necessarily meant that they would break the law. For example, LGBTpersons were denied workas police officers and government attorneys based on internal policies (written and unwritten) assumingthat they would be unable to enforce sodomy laws. (See, e.g., Shahar v. Bowers (11th Cir. 1997) 114 F.3d 1097, 1101 [upholding Georgia Attorney General’s decision to rescind an offer of employmentafter a prospective employee disclosed she was a lesbian based on an assumption that her employmentconflicted with the Department’s ability to enforce Georgia’s sodomy law]; see also City ofDallas v. England (Tex. App. 1993) 846 S.W.2d 957, 959 [finding unconstitutional a departmentpolicy preventing a lesbian from working as a police officer underthe state’s sodomy statute].) Just as courts generally no longer find persuasive the argumentthat LGBTpersonsare unable to abide by the law due to their LGBTstatus, Amici urge this Court to disregard similar policy arguments that may be offered in this case concerning undocumented immigrants. The mere fact that an applicant is undocumented does not suggestthat he or she is incapable of upholding the law and otherwisefulfilling all of the 29 professional and ethical obligations of an attorney. (See Hallinanv. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447, 453-55, 473-74 [421 P.2d 76] [admitting an applicant into the California bar even though he opinedthat attorneys should not always follow the law and admitted that he might participate in future civil disobedience].) This Court noted in Hallinan, supra, 65 Cal.2d at page 459, that “every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.” Instead, the Court required that evidence regarding the circumstancesofthe act “reveal some independent act beyondthe bare fact of a criminal conviction to show that the act demonstrates moral unfitness and justifies exclusion or other disciplinary action by the bar.” (/bid.) There is nothing in the record to suggest that Mr. Garcia is morally unfit or likely to commit a crimeso asto justify exclusion from the California bar. He has met all the necessary qualifications, and no evidence has been presented that he has committed anyact that would make him unfit for admission. // 30 CONCLUSION For the foregoing reasons, NCLR and LambdaLegalrespectfully urge this Court to admit Mr. Garcia to the California State Bar. Dated: July 18, 2012 Respectfully submitted, Cnpola Kk. foro~e Angela. Perone Shannon P.Minter (SBN 168907) Christopher F. Stoll (SBN 179046) Angela Perone (SBN 245793) National Center for Lesbian Rights 870 MarketStreet, Suite 370 San Francisco, CA 94102 (415) 392-6257 Attorneys for Amici National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc. 31 CERTIFICATION OF WORD COUNT Pursuant to rule 8.204(c)(1), California Rules of Court, the undersigned herebycertifies that this BRIEF OF AMICI CURIAE NATIONAL CENTER FOR LESBIAN RIGHTS AND LAMBDA LEGAL DEFENSE AND EDUCATION FUND,INC. IN SUPPORT OF ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIAcontains 6,103 words, excluding the tables and this certificate, according to the word count generated by the computer program used to produce this document. Dated: July 18, 2012 Cong ha K. Fonore Angeld K. Perone CA SBN 245793 CERTIFICATE OF SERVICE I, Chris Zaldua, declare as follows: I am employed in the County of San Francisco, State of California;I am over the age of eighteen years and am nota party to this action; my business address is 870 Market Street, Suite 370, San Francisco, California 94102, in said County and State. On June 18, 2012, I served the following document(s): APPLICATION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE AND BRIEF OF AMICI CURIAE NATIONAL CENTER FOR LESBIAN RIGHTS AND LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. IN SUPPORT OF ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA on the parties listed below, by placing a true copy thereof in a sealed envelope addressed as shown below by the following meansofservice: Starr Babcock Lawrence C. Yee Richard J. Zanassi Rachel S. Grunberg STATE BAR OF CALIFORNIA 180 Howard Street San Francisco, CA 94105 Telephone: (415) 538-2070 Attorneysfor the Committee ofBar Examiners ofthe State Bar of California Robert E. Palmer Joshua A. Jessen Drew A. Harbur GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612-4412 Telephone: (949) 451-3800 Attorneysfor the Committee ofBar Examiners ofthe State Bar of California Donald K. Tamaki Minette A. Kwok Phillip M. Zackler MINAMI TAMAKI LLP 360 Post St., 8" Floor San Francisco, CA 94108-4903 Telephone: (415) 788-9000 Attorneysfor the Committee ofBar Examiners ofthe State Bar of MarkA.Perry 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5036 Telephone: (202) 955-8500 Attorneyfor the Committee ofBar Examiners ofthe State Bar of California California Kevin R. Johnson Bill Ong Hing OF COUNSEL TO MINAMI OF COUNSEL TO MINAMI TAMAKI LLP TAMAKI LLP Dean and Professor of Law UC Davis School ofLaw 400 Mrak Hall Drive Davis, CA 95616 Telephone: (530) 752-0243 Attorneyfor the Committee ofBar Examiners ofthe State Bar of California Professor of Law University of San Francisco School ofLaw 2199 Fulton Street San Francisco, CA 94117 Telephone: (415) 422-4475 Attorneyfor the Committee ofBar Examiners ofthe State Bar of California Bryan Springmeyer OF COUNSEL TO MINAMI TAMAKI LLP 275 Battery Street, Suite 1170 San Francisco, CA 94111 Telephone: (415) 935-8936 Attorneyfor the Committee ofBar Examiners ofthe State Bar of California Jerome Fishkin Lindsay K.Slatter SamuelC. Bellicini FISHKIN & SLATTER LLP 1575 Treat Blvd., Suite 215 Walnut Creek, CA 94598 Telephone: (925) 944-5600 Attorneysfor Sergio C. Garcia BY MAIL:I placed true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same dayin the ordinary course ofbusiness. I am aware that on motion of party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I am employedat the National Center for Lesbian Rights, and the foregoing document(s) was(were) printed on recycled paper. (STATE) I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. wd Ge Chris Zaldua Executed on June 18, 2012.