Mark B. Baer, Esq.

Empathy and Relationships

Some Forms of Compassion Are More “Acceptable” Than Others

Compassion is in the eye of the beholder.

Posted Jul 12, 2017

Over a year ago, the founder of the Law and Compassion Research Network sent a connection of mine an email that stated in part as follows:

"Please put me in touch with Mark Baer. I did a quick Google search of his work, and note that he has also published on 'empathy' - a key component of compassion, and another topic on which I am working. Mark might be interested to know that I founded and coordinate the Law and Compassion Research Network; presently a group of UK-based scholars interested in research on compassion and law. I intend this year to grow the group internationally. We may wish to establish links with practitioners when we come to organise events, and Mark would seem to be a good person to connect with. Mark may also be interested to know that I co-organised the Symposium on Law and Compassion in London, England, last year."

A few days later, after we had connected with each other and exchanged pleasantries, he sent me an email that stated in part as follows:

"I took the opportunity to read a number of your articles and watched a few of your youtube videos before following up with Marc's suggestion. It was refreshing and heartening to encounter an attorney who emphasises the importance of empathy and compassion.

I hope we might find some ways of collaborating....

My research aims to explore the place of compassion in law, principally English Law since I know that best, though I refer where appropriate to law in other jurisdictions because some of the broad themes are similar, at least across common law jurisdictions, e.g. judicial resistance to admitting compassion as a substantive ground for decision-making. In addition to the exploration of law, I argue for a greater role for compassion in law.

The Symposium on Law and Compassion that I co-organised in summer 2015, comprised presentations by academics, a judge, and a barrister. I'm keen to ensure that research informs any practice, judging, policy, and legislation, but also keen on learning from practitioners, judges, and policy makers.

Arising from the Symposium, I founded the Law and Compassion Research Network."

Shortly thereafter, we spoke on Skype, and in January of this year, I received an email from him which stated in part as follows:

"I'm following up to invite you to participate by Skype in that seminar on law and compassion that we discussed last May. It's a great line up, and scheduled for July 13."

I accepted his invitation, spent a good deal of time preparing for the Symposium and emailed him the PowerPoint slides I intended to use for my presentation.

Among other things, I was asked to “explain –largely for the benefit of a UK-based audience – the distinction between federal and state law in so far as it pertains to Family law (as we don’t have this distinction in the UK).”

He responded in part as follows:

"I printed off your revised PowerPoints last night with a view to providing feedback on these in time for your start today. You've started early!"

He offered a few suggested revisions to my slides, which I made, and he responded as follows:

"I acknowledge safe receipt of the revised PowerPoint. 

Thanks for putting further work into the PowerPoint."

Everything went downhill from there.

I decided to use Obergefell v. Hodges, the U.S. Supreme Court’s marriage equality decision, as an example of "the distinction between federal and state law in so far as it pertains to Family law" because it involved family law (it pertained to marriage, families and children), found unconstitutional any state laws and constitutional provisions denying same-sex couples the right to marry, and is the most seminal Supreme Court case with regard to law and compassion of which I'm aware.

My two slides on the subject were as follows:

1. Federal v. State Law As It Pertains To Family law

The Supremacy Clause within Article VI of the U.S. Constitution states, “This Constitution, and the Laws of the United States…shall be the supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, state laws and state constitutions can be forced to comply with minimum standards established under the federal Constitution.

Examples: state laws against interracial marriage; state laws against same-sex marriage; prohibiting polygamous marriages; barring entry of immigrant "spouses" engaged in fraudulent marriages.

2. Marriage Equality Decision

“Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations….

Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together….

The petitioners seek marriage for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Excluding same-sex couples from marriage conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser….

This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order….

Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives….

Being married in one State but having that valid marriage denied in another is one of ‘the most perplexing and distressing complication[s]’ in the law of domestic relations….

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family….

Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

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

On July 11th, two days before the Symposium, I received a response stating in part as follows:

“Avoid reference to the federal/ state distinction and delete the accompanying slide. There is no explanation as to why this distinction is important vis-à-vis compassion. It currently comes across as an errant constitutional curiosity. I had hoped when making the initial request that the explanation of the distinction would be necessary because of its relevance to Family Law and compassion in the USA. But no reference is made in the presentation to whether or not and how the distinction might be relevant to compassion.

Explain precisely why you believe that Obergefell is illustrative of compassion. At present, there is only an assertion that it is, followed by a quotation from the judgement that includes reference to a number of discrete and distinguishable concepts including: stigma, instability, etc. Which of these are pertinent to compassion and why? 

The illustration will achieve shape through perspective: Is there any corroborating opinion for your view: case notes, law review articles etc? Is this Supreme Court judgement unique to the facts of the case only? Is there any other jurisprudence that supports the statement that constitutional law can involve compassion? Or is your view singular and Obergefell an outlier? 

Members of the audience will reasonably want to know why this case is chosen, why precisely it is seen to be compassionate when the judgement refers to other grounds for decision-making, and given that the US Constitution does not refer to compassion, and jurisprudence generally eschews compassion as a basis for judging.”

I replied as follows:

"Solicitor General Donald Verrilli was the second of two lawyers to argue in favor of equality.

The following is a quote from an article titled A Conversation with Former Solicitor General Don Verrilli published by the American Constitution Society For Law and Policy - Harvard Law School Chapter:

"On the topic of marriage equality, Mr. Verrilli talked about reading the mood of the public and of the Supreme Court justices, particularly Justice Kennedy, when deciding which cases to support and in what way. He also discussed meeting with President Obama in the lead-up to Obergefell to decide how to argue the case, in light of the fact that the Due Process arguments made in previous cases did not seem to resonate strongly with the justices. Out of that meeting came the approach that Mr. Verrilli successfully adopted at oral argument, which focused on the human element of marriage equality and stressed the importance of empathy and compassion, and the freedom to love."

The following is an excerpt from an article titled If SCOTUS Decides in Favor of Marriage Equality, Thank Solicitor General Don Verrilli that was published in Slate:

"Although Mary Bonauto, the anointed advocate for equality, held her own on Tuesday, she failed to point the justices toward a single, unifying argument that would tie together complex legal doctrines and simple human compassion. By the time she sat down, the case for marriage equality had been muddled by conservative justices’ endless questions about the ancient roots of opposite-sex marriage....

Then two things happened. First, a protestor arose and shouted ‘“Homosexuality is an abomination!’ and ‘You’ll all burn in hell!’ Then, seconds after he was escorted from the courtroom, Solicitor General Donald Verrilli approached the bench. As the protestor was dragged down the hall, Verrilli began to defend same-sex marriage on behalf of the United States. Shouts of ‘abomination’ and ‘hell’ echoed into the courtroom as Verrilli began to speak. But he forged ahead anyway—and what he said over the next fifteen minutes masterfully established the burning importance and obvious correctness of marriage equality.

Verrilli is a calm, careful advocate, and his tepid arguments in support of same-sex marriage two years ago were unenthused and unpersuasive. This time around, Verrilli simply nailed it. With his fifteen minutes, Verrilli grounded marriage equality in ‘human dignity,’ explaining that, if the court rules the wrong way, ‘thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships.’ Justice Anthony Kennedy is absolutely fixated on dignity, and Verrilli’s argument is clearly designed to bait him.

It works. Kennedy responds positively, asking Verrilli, ‘haven’t we learned a tremendous amount [about gay people] since Lawrence, just in the last 10 years?’

‘Yes,’ Verrilli responds, not missing a beat. (Kennedy, of course, wrote the majority opinion in Lawrence, striking down sodomy bans.) Verrilli then holds Kennedy’s hand and walks him down the path upon which Bonauto stumbled:

I do think Lawrence was an important catalyst that has brought us to where we are today. And I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in a society as free people and start families and raise families and participate fully in their communities without fear. … We understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community. And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of impression.

You can almost hear Kennedy smile and think, now we’re talking. It’s this stuff that Kennedy wants to hear: stuff about free people and communities and equality, about all the lives he’ll make better if he rules the right way. Verrilli lays it on thick, later telling Kennedy that ‘there’s a profound connection between [constitutional] liberty and equality’—a connection Kennedy has harped upon in his gay rights opinions. Verrilli talks about families and children and, above all, dignity. As his time ends, he delivers the perfect peroration: ‘Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.’

Verrilli’s appeal to Kennedy’s favorite concepts may be, as Jeffrey Toobin wrote, blatant pandering. But if so, it is pandering that works. Everybody knows Kennedy holds the key to the outcome of this case. Verrilli’s brief, brilliant turn at the lectern pivoted arguments in the right direction and gave Kennedy all the ammunition he needs to blast down state-level marriage bans. If and when that happens, we’ll have a long roster of advocates to thank. Verrilli should be at the top of the list."

The following is a quote from an article by Constitutional Law expert Laurence Tribe regarding that Supreme Court decision:

"I argue that Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity— and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public education."

The reason I selected the Obergefell decision is its importance in having created the Constitutional doctrine of equal dignity.

With all due respect, I completely disagree with the following comment of yours: "Avoid reference to the federal/ state distinction and delete the accompanying slide. There is no explanation as to why this distinction is important vis-à-vis compassion."

It's an incredibly important decision for the reasons set forth above. As such, it isn't “an errant constitutional curiosity.”

Tribe also said the following:

"It is that the dominant strain in Justice Kennedy’s writings on dignity — the strain that achieved full expression in Obergefell — has become the notion of equal dignity as the very foundation of individual human rights....

The conception of equal dignity in fact has a considerable doctrinal pedigree, one stretching across some of the most high-profile cases decided by the Court in the past half-century. The notion that Obergefell had no foundation is simply wrong....

Justice Kennedy’s rhetoric of equal dignity, particularly in his series of gay-rights decisions, has always been fundamentally rooted in the importance of fostering dialogue among ordinary citizens and, in a sense, even among the very clauses of the Constitution itself....

Obergefell’s doctrine of equal dignity points a way forward in the still ongoing struggle for equal rights for LGBT individuals — a struggle that will have to be waged not just in the courts but in regulatory bodies, legislatures, and popular lawmaking through initiatives and referenda. The doctrine of equal dignity signals the beginning of the end for discrimination on the basis of sexual orientation in areas like employment and housing, which remains legal in many states and has yet to be expressly banned in federal legislation. The Equal Employment Opportunity Commission (EEOC) has recently ruled that federal laws banning gender discrimination in employment should be understood to ban discrimination based on sexual orientation as well, but a future EEOC might rule otherwise, and new federal legislation making such a ban explicit would clearly help to secure that principle as an enduring part of our national law. Such legislation might also be needed to give fuller meaning to the principle of equal dignity for women, who remain the too-often forgotten half of the human equation....

The great advance of Obergefell is to have pointed the way forward for resolving these remaining conflicts by creating a legal and social environment in which dignity can proudly speak its name."

With all due respect, Obergefell made marriage equality the law of the land by virtue of the Supremacy Clause of the U.S. Constitution. It was all about law and compassion. Furthermore, if you don't think that marriage equality is an aspect of Family Law, I'd have to disagree, as would all of my family law colleagues. You see, same-sex couples throughout the United States (regardless of which state the live) may now marry. They may also avail themselves of the Family Law Code in any given state and the family law courts. This is very much about Family Law and it's very much about law and compassion.

What I provided before were excerpts from Justice Kennedy's majority opinion and those excerpts explained from where the compassion came.

Actually, this case is so incredibly important with regard to law and compassion, particularly with regard to families and children, that I could spend more than the fifteen minutes originally allocated just speaking on it."

There were other topics addressed, as well, such as whether or not the presentations are going to be limited to the effect of compassion or also include the science behind it.  With regard to that topic, I provided him with an article titled Compassion Defined: What Is Compassion? Why Practice It? How Do I Cultivate It? that was published in Greater Good Magazine: Science Based Insights For A Meaningful Life. 

I explained the neuroscience behind it, which was addressed in that article and which I wrote about in my last Psychology Today article, which was titled Your Biases And Beliefs Are Impacting Your Decision-Making: Neuroscience helps to better understand people and the decisions they make.

I told him that I was really looking forward to participating in the program and asked whether I was supposed to ignore the emotions and feelings. In fact, I said the following:

It is my understanding that the decisions we make are the result of our emotions (which react a certain way as a result of our personal biases, beliefs, assumptions, expectations, and values) and our feelings. Compassion is an emotion, as are fear and anger

In other words, the four Supreme Court justices who voted against same sex marriage did so based upon how they interpret the Constitution as a result of their emotions and feelings which are shaped by their personal biases, beliefs, assumptions, expectations, and values.  By the same token, the five Justices who voted in favor of same-sex marriage did so based upon their emotions and feelings -- compassion being a big one. 

The idea that judges make decisions divested of "all fear, anger, hatred, love, and compassion" and other emotions and feelings is absolutely absurd to me, unless they aren't human.

Earlier this morning, I received the following response:

“I am writing to regretfully advise that we must rescind the offer to you to participate in the Symposium on Compassion: Child and Family Law, 13 July 2017, because we are no longer confident that your proposed presentation will meet the requirements for the Symposium.


Your name has been withdrawn from the programme for the Symposium.

I would like to thank you for your willingness to participate and to wish you well in your future work.”

Yesterday evening, I was talking with a lawyer colleague about my surprise and dismay with the response I had received. She said that, apparently, some forms of compassion are more “acceptable” than others. I was feeling exactly the same way, which was very disconcerting because this is from the founder of the “Law and Compassion Research Network.”

When I shared all of this information with my colleague this morning, she commented as follows:

“What disappointing news—on so many levels (that our fears were correct, that your discussion’s ideas will not be shared at the conference, etc.).

Here’s to keeping on fighting the good fight.”

I certainly hope that my colleague and I are wrong because we certainly don't know for certain what was meant by "we are no longer confident that your proposed presentation will meet the requirements for the Symposium." All I know is the chain of events, emails and information exchanged.

It's certainly disappointing, and, what "requirements" wouldn't include the most seminal U.S. Supreme Court case on compassion and the law, the neuroscience behind compassion and how it works? Irrespective, it's their Symposium and therefore they set the "requirements." 

More Posts