Now entertain conjecture of a time. . . .

Before the Boy Scouts voted on the issue that was the subject of my last post, Texas Governor Rick Perry recorded a statement from inside the Governor’s mansion, analogizing his public stance against allowing (openly) gay boys to join the Boy Scouts to founding Texan Sam Houston’s stance against secession. Perry claimed that Sam Houston had stood up against the cultural tide of his time, opposing secession as a matter of principle because he was opposed to slavery—even though it cost him his governorship:

From this library that I speak, he made a powerful decision that cost him his governorship. He was against slavery, and he stood up and very passionately said, you know, ‘Texas does not need to leave the Union over this issue of slavery. We need to stay. We’ve only been’ -- he thought, a terrible decision. He was right. But it cost him his governorship.

The Texas version of Politifact reviewed this statement and rated it “half true.” A generous assessment indeed—at least if the assertion is assessed through the lens of a legal argument.

Legal arguments are only compelling if they are supported by precedent that is on point and well-reasoned and, preferably, binding on the decision-maker. This is because most judges believe in doing their job; and the job of adjudicating legal disputes means that relevant, well-reasoned, binding precedent is supposed to answer most questions. Absent binding precedent, a judge at least looks for relevant, persuasive precedent for guidance; and if that non-binding, but highly relevant, precedent is not persuasive, the judge who is doing his/her job owes it to his/her audience to provide reason-based arguments as to why that previous decision is not sound and thus a different outcome is warranted. Therefore, when it comes to judges who are committed to doing their job, nothing is riskier than invoking an authority as if it supports your position when in fact it doesn’t. Make no mistake: they will not simply take your word for it; they will fact-check you.

Here is how Sam Houston’s action on the eve of Texas’s secession relates to Perry’s stance with regard to the Boy Scouts:

• Rick Perry and Sam Houston are people who have been governors of Texas.
• The prospect of states seceding from the Union in 1860 and the prospect of the Boy Scouts allowing openly gays boys to join their organization in 2013 are both developments that raise the hackles of some contingent of people throughout the country—but especially in Texas.
• Sam Houston did oppose secession while his constituents voted for it, and he was run out of his job as a result. 

Here is the problem with Perry citing Sam Houston’s action on the eve of Texas’s secession as support for the stance he has taken with regard to the Boy Scouts:

• Perry’s assertion that Sam Houston opposed secession because Houston, a slave owner, was against slavery, is readily falsifiable. Houston never made any statement—let alone publically disclaimed—slavery.
• The public debate about secession, which certainly hinged for many on whether some states should continue to have the right to permit their citizens to hold other human beings in bondage, is not quite analogous to the debate within a private non-profit organization about whether to exclude some from membership based on an innate characteristic: sexual orientation.
•  Even if Sam Houston had spoken out against slavery (which he didn’t), that stance would stand in stark contrast to speaking out for an exclusionary position based on hatred, bigotry, fear, ignorance, and/or political expediency.
• Even if Sam Houston had spoken out against secession (which he did), for a person to invoke that stance who, in very recent history, has spoken out implicitly for a modern secession movement so as to rally followers during the run up to a (failed) bid to run against the country’s first African-American president is, at best, distasteful. It certainly does not resonate in a way that moves a reasonable mind want to nod in agreement.
• Rick Perry did oppose the idea that the Boy Scouts should become more inclusive, and, while many of his constituents may agree with him, a majority of the Boy Scouts’ leadership did not. Even so, Perry is still comfortably ensconced in the Governor’s mansion.  In other words, taking this stance did not take demonstrable courage in the face of a rabid mob but looks more like red meat thrown to likeminded constituents.

In citing precedent, lawyers need to be like most of Shakespeare’s (educated) characters, whose allusions to precedential figures always ring true. At the very least, lawyers need to ensure that, when invoking precedent, their authorities are:

• Sufficiently relevant;
• Described accurately; and
• Thematically resonate.

Alternatively, lawyers’ allusions should function like the one used by King Henry V just before the Battle of Agincourt. He invoked Saint Crispin as precedent to inspire his sorely outnumbered troops. The King could count on the audience he intended to persuade to know only that Crispin (and his twin brother Crispian) were noble-born men who were grossly outnumbered, but, despite the sore odds, remained true to their faith, and were actually humble enough to support themselves performing honest work (shoe-making) at night to sustain a life of integrity. And armed with that knowledge—which is all that exists regarding this precedent—those hearing Henry’s argument about how the English should comport themselves experience a resonance that thrills both heart and mind:

And Crispin Crispian shall ne'er go by,

From this day to the ending of the world,

But we in it shall be remember'd;

We few, we happy few, we band of brothers;

For he to-day that sheds his blood with me

Shall be my brother; be he ne'er so vile,

This day shall gentle his condition:

And gentlemen in England now a-bed

Shall think themselves accursed they were not here,

And hold their manhoods cheap whiles any speaks

That fought with us upon Saint Crispin's day.

Henry V, IV.3

Meaningful resonance between precedent and contemporary fact-pattern is what persuade a judicious decision-maker to embrace one's argument and grant relief.