Massachusetts bar exam flunker Stephen Dunne has dismissed his civil-rights lawsuit but begged credulity by saying he was doing so because the state had dropped a question about same-sex marriage from the exam.

As a result of the “corrective action” of the state in removing the “patently offensive and morally repugnant question” from the July 2007 exam, “Plaintiff humbly requests a voluntary dismissal without prejudice,” Dunne said in a motion filed last week.

“Defendants' removal of the question is assurance that all future examinees taking the Massachusetts Bar Examination will not be forced to accept, support or promote a liberal ideology on a professional licensing examination,” he explained.

In his pro se complaint, Dunne alleged he failed the February 2007 exam because, in accordance with his faith-based views on homosexuality, he refused to answer the question. The suit originally sought $9.75 million in damages, though Dunne later amended that to $9.75, claiming he was only interested in “equity and justice.”

But the state -- whose own motion to dismiss was pending -- quickly discredited Dunne's clumsy attempt to spin a victory out of a case that was not likely to pass even a threshold legal test.

“That Defendants elected not to ask the same question on both the February and July, 2007 bar examinations merely reflects their standard practice of not repeating questions on successive bar examinations,” Assistant Attorney General Anne Sterman said in a response brief.

“Defendants maintain that the question to which Plaintiff objects was a legitimate question regarding the current state of the law in the Commonwealth,” she continued. “The Board of Bar Examiners maintains its right to test bar applicants on that same subject matter in future examinations.”

By voluntarily dismissing, Dunne avoids an almost certain dismissal by a judge and a potential award of attorney's fees to the state. The question he found so offensive presented a hypothetical about the breakup of a lesbian couple in Massachusetts, the only state in the nation where same-sex marriage is legal.

“[R]esponding to the question did not require Plaintiff to endorse any particular viewpoint or express a personal opinion about the issues presented,” Sterman noted in the state's motion to dismiss. “It merely required him to state the current law in the Commonwealth.”

By Matthew Heller
9/9/07