Tuesday, November 24, 2009

Should you really go to law school?

Despite the down economy and big firm layoffs, college students are still beating down the doors of law schools in America. More people — 60,746 — took the most recent LSAT on September 26 than had ever taken the exam before. The number of LSAT takers has been on the rise since 2007, but this is the largest jump since 2001— nearly 20% over last year.




I won't dig into the reasons for this increase too much. (If you are interested, this thorough post on Most Strongly Supported has a good discussion.) But for any person considering law school or a legal career, this is a good excuse to discuss the question of whether you really should go to law school.

There has been a flurry of articles and blawg posts lately about whether a legal education is really a good investment. Vanderbilt Law professor Herwig Schlunk wrote an entertainingly-titled article "Mamas Don't Let Your Babies Grow Up To Be ... Lawyers," and Paul Caron of TaxProf Blog asserted that "Going to Law School Is Like Starting to Smoke." There's a healthy dose of humor and pessimism in both those pieces, but even the most optimistic observers have to recognize that the legal profession is undergoing a shift that is destroying many of the institutions that made it so lucrative. Aspiring lawyers must now realize that they might not have a job waiting for them when they graduate from law school. And law schools, particularly those in the top tier, have become more like big businesses than halls of learning. While the median income of lawyers increased by 25% from 1987 to 2002, the average law school debt increased 400% over that same period. In 2005, the average graduate of a private law school had $78,000 of debt from law school alone.

Young LDS students considering legal careers should carefully consider these sobering number, in light of Mormon Church advice on avoiding debt. I have heard many people within the Church say that borrowing money is okay for purchasing a home, obtaining an education, and sometimes to purchase a vehicle. But given the housing market collapse and the rising costs of a legal education, students should understand that neither a house nor an education is always a good investment.

While some parts of the country are still under-serviced, there are probably too many people getting into the practice of law. Last month Justice Antonin Scalia commented that he thought that America is "wasting some of our best minds" on lawyering, when other fields lack qualified applicants. After last September's jump in LSAT takers, the ABA Journal took the unusual step of suggesting that applicants "consider the alternatives."

My advice to people considering law school is the same that it has always been. If you are interested in the practice of law, then by all means, pursue it. But if you don't know what to do with your life and you know lawyers can make a lot of money, I think it's a bad decision. I also recommend that future law students find out for themselves whether they will like legal practice. Most law schools will let you sit in on first-year law school classes, and you can volunteer or do internships at legal offices to find out what the practice is really like. It is better to find out early on that you wouldn't really like being a lawyer, and if you do like it, the experience will cement your decision.

This content is cross-posted from LDS Law.

Wednesday, November 11, 2009

Legal Brief: LDS Church Nondiscrimination, Phoenix Temple Zoning Approved

  • The LDS Church declares its support of nondiscrimination regulations that would extend protection in matters of housing and employment to gays in Salt Lake City. LDS Newsroom
  • Statement from LDS church regarding Salt Lake City's non-discrimination ordinance. Deseret News
  • Phoenix planning commission approves zoning changes for Mormon temple. Fox 10 AZ




  • Neighbor vs. Neighbor over Mormon Temple in Phoenix. Fox 10 AZ

Tuesday, November 3, 2009

In response to a commenter

Last month I noticed a lurking commenter on this site that also commented on one of Jeff Breinholt's posts over at Mormon Matters. (Jeff is a DoJ attorney with a superb series of legal posts. If you haven't read his stuff, I highly recommend it.) The commenter identifies himself as Frank Fox, who Jeff named as one of the pro se litigants who has filed multiple spurious lawsuits against the Mormon Church.

I got curious about these cases, and found several opinions dismissing two of Fox's previous lawsuits. The first lawsuit, Fox v. Hawk, was dismissed sua sponte under F.R.C.P. 12(b)(6). (Cases filed pro se and in pauperis can be reviewed sua sponte under Hall v. Bellmon.) The Utah District Court gave Fox a chance to amend his Complaint, but the Amended Complaint still failed to state a claim and the case was ultimately dismissed on May 9, 2008.

Fox filed another pro se suit on February 27 of this year in the case Fox v. Eyring. Fox identified Henry B. Eyring as the leader of the Mormon Church, and alleged various claims, including that Eyring and the Church had violated his civil rights under 42 U.S.C. §1983 and §1985 and had cyberstalked him. Acting sue sponte, the Utah District Court again found Fox's claims to be baseless and dismissed  the suit for failure to state a claim.

Not easily deterred, Frank G. Fox filed a new case in his home state of Louisiana a mere week after the dismissal of the Eyring case. In Fox v. Tippetts he again alleges civil rights violations by the Church of Jesus Christ of Latter-day Saints. Fox says that the Church hasn't yet responded to the lawsuit, and I haven't seen any of the filings. However, unless Fox's pleadings have improved significantly since Eyring, this case may be doomed to a swift dismissal as well.

My guess is that almost any large institution or public figure continually face spurious lawsuits. In fact, Jeff Breinholt's research seems to show that the Mormon Church faces more than it's fair share of frivolous litigation. But these aren't the sorts of cases that keep the Church Legal Department up at night.

Wednesday, October 28, 2009

How Maine Q. 1 is different from Prop 8

The campaign has mostly stayed below the radar, but voters in Maine will soon decide whether same-sex marriage will be legalized in their state.  Question 1 on this November’s ballot is very similar to last year’s California Proposition 8, but there are some big differences that I think are important.

Same-sex marriage was briefly legalized in California as a result of the state Supreme Court decision In re Marriage Cases.  The court refused to stay its holding to allow legal challenges, resulting in the voter initiative know as Prop. 8.  That vote and the subsequent California Supreme Court review brought gay marriages to a halt in California, but did not invalidate those already performed.

Contrast that tumultuous history with the background in Maine.  Like in New Hampshire, same-sex marraige was legalized in Maine through legislative act rather than judicial opinion.  I consider this to be a far preferable method of implementing new laws, for several reasons.  For example, the Maine statute included specific language about religious freedoms and addressed how the new law would (and would not) alter the obligations of religious organizations, clergy, and individuals.  I don’t think the Maine statute went far enough to protect individuals, but it’s a lot better than the silence in California on the topic.

Maine was also prudent enough to delay issuing marriage licenses to gay couples pending the outcome of Question 1.  While this may delay the ability of some couples to marry, I think it is much better to avoid the legal limbo and further litigation that happened in California.  The Maine statute also seems to address legitimate interests of gay citizens, rather than the ephemeral social acceptance the California Supreme Court attempted to mandate.  In general, I think legislators and officials in Maine have taken a far better approach to the question of legalizing same-sex marriage than their counterparts in California.

For Mormons, one of the biggest differences in the two campaigns is that the LDS Church has not taken an active role in the Maine initiative like it did in California. Individual Mormons are active in the campaign, but there have been no letters read from the pulpit or public statements from Mormon officials like in Prop. 8. I think this may be due to the fact that there is a smaller LDS population in Maine than in California, and perhaps the legislative approach to the law change and religious protections were more palatable to Mormon leaders. However, given the backlash and hostility following the outcome of Prop. 8, perhaps Mormon leaders are reluctant to get involved in a firefight again.

Despite their differences, Maine Question 1 and California Proposition 8 do have one thing in common: just days before the election, both initiatives were too close to call.  Maine Question 1 is running about even in the polls, so it won’t be until November 3 before we know the outcome.

Photo credit: J. Stephen Conn.This content is cross-posted from LDS Law.

Saturday, October 17, 2009

Legal Briefs: JRCLS Student Chapter Newsletter, Free LDS Legal Advertising

  • Looking for a way to find more clients in this tough economy? LDS Legal Link continues to be a great resource for LDS attorneys. The website lists LDS lawyers from across the country, including their areas of expertise and where they are admitted to practice. If you haven't registered with LDS Legal Link yet do it now it's free.

Thursday, October 15, 2009

Dallin H. Oaks on Religious Freedom (Includes Video and Text)

On Tuesday, Elder Dallin H. Oaks, delivered a powerful speech on religious freedom at Brigham Young University-Idaho.




Transcript of Elder Dallin H. Oaks speech.




My dear young friends, I am pleased to speak to this BYU-Idaho audience. I am conscious that I am also speaking to many in other places. In this time of the Internet, what we say in one place is instantly put before a wider audience, including many to whom we do not intend to speak. That complicates my task, so I ask your understanding as I speak to a very diverse audience.

In choosing my subject I have relied on an old military maxim that when there is a battle underway, persons who desire to join the fray should "march to the sound of the guns."So it is that I invite you to march with me as I speak about religious freedom under the United States Constitution. There is a battle over the meaning of that freedom. The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.



An 1833 revelation to the Prophet Joseph Smith declared that the Lord established the United States Constitution by wise men whom he raised up for that very purpose (Doctrine and Covenants 101:80). The Lord also declared that this constitution "should be maintained for the rights and protection of all flesh" (Doctrine and Covenants 101:77; emphasis added).

In 1833, when almost all people in the world were still ruled by kings or tyrants, few could see how the infant United States Constitution could be divinely designed "for the rights and protection of all flesh." Today, 176 years after that revelation, almost every nation in the world has adopted a written constitution, and the United States Constitution profoundly influenced all of them. Truly, this nation's most important export is its constitution, whose great principles stand as a model "for the rights and protection of all flesh." On the vital human right of religious freedom, however, many constitutions fall short of the protections that are needed, so we are grateful that the
United States government seeks to encourage religious freedom all over the world.


To illustrate the importance of basic human rights in other countries, I refer to some recent history in Mongolia, which shows that the religious freedom we have taken for granted in the United States must be won by dangerous sacrifice in some other nations.

Following the perestroika movement in the
Soviet Union, popular demonstrations in Mongolia forced the Communist government to resign in March 1990. Other political parties were legalized, but the first Mongolian elections gave the Communists a majority in the new parliament, and the old repressive attitudes persisted in all government departments. The full functioning of a democratic process and the full enjoyment of the people's needed freedoms do not occur without a struggle. In Mongolia, the freedoms of speech, press and religion - a principal feature of the inspired United States Constitution - remained unfulfilled.

In that precarious environment, a 42-year-old married woman, Oyun Altangerel, a department head in the state library, courageously took some actions that would prove historic. Acting against official pressure, she organized a "Democratic Association Branch Council." This 12-member group, the first of its kind, spoke out for democracy and proposed that state employees have the freedoms of worship, belief and expression, including the right to belong to a political party of their choice.


When Oyun and others were fired from their state employment, Oyun began a hunger strike in the state library. Within three hours she was joined by 20 others, mostly women, and their hunger strike, which continued for five days, became a public demonstration that took their grievances to the people of
Mongolia. This demonstration, backed by major democratic movement leaders, encouraged other government employees to organize similar democratic councils. These dangerous actions expanded into a national anti-government movement that voiced powerful support for the basic human freedoms of speech, press and religion. Eventually the government accepted the demands, and in the adoption of a democratic constitution two years later Mongolia took a major step toward a free society.

For Latter-day Saints, this birth of constitutional government in
Mongolia has special interest. Less than two years after the historic hunger strike, we sent our first missionaries to Mongolia. In 1992 these couples began their meetings in the state library, where Oyun was working. The following year, she showed her courage again by being baptized into this newly arrived Christian church. Her only child, a 22-year-old son, was baptized two years later. Today, the Mongolian members of our Church number 9,000, reportedly the largest group of Christians in the country. A few months ago we organized our first stake in Mongolia. Called as the stake president was Sister Oyun's son, Odgerel. He had studied for a year at BYU-Hawaii, and his wife, Ariuna, a former missionary in Utah, graduated there.


One of the great fundamentals of our inspired constitution, relied on by Oyun of Mongolia and countless others struggling for freedom in many countries in the world, is the principle that the people are the source of government power. This principle of popular sovereignty was first written and applied on the American continent over 200 years ago. A group of colonies won independence from a king, and their representatives had the unique opportunity of establishing a new government. They did this by creating the first written constitution that has survived to govern a modern nation. The United States Constitution declared the source of government power, delegated that power to a government, and regulated its exercise.

Along with many other religious people, we affirm that God is the ultimate source of power and that, under Him, it is the people's inherent right to decide their form of government. Sovereign power is not inherent in a state or nation just because its leaders have the power that comes from force of arms. And sovereign power does not come from the divine right of a king, who grants his subjects such power as he pleases or is forced to concede, as in Magna Carta. As the preamble to our constitution states: "We the People of the
United States . . . do ordain and establish this Constitution."

This principle of sovereignty in the people explains the meaning of God's revelation that He established the Constitution of the United States "that every man may act . . . according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment" (Doctrine and Covenants 101:78). In other words, the most desirable condition for the effective exercise of God-given moral agency is a condition of maximum freedom and responsibility - the opposite of slavery or political oppression. With freedom we can be accountable for our own actions and cannot blame our conditions on our bondage to another. This is the condition the Lord praised in the Book of Mormon, where the people - not a king - established the laws and were governed by them (see Mosiah 29:23-26). This popular sovereignty necessarily implies popular responsibility. Instead of blaming their troubles on a king or tyrant, all citizens are responsible to share the burdens of governing, "that every man might bear his part" (Mosiah 29:34).



"For the rights and protection of all flesh" the United State Constitution includes in its First Amendment the guarantees of free exercise of religion and free speech and press. Without these great fundamentals of the Constitution, America could not have served as the host nation for the restoration of the gospel, which began just three decades after the Bill of Rights was ratified.


The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The prohibition against "an establishment of religion" was intended to separate churches and government, to prevent a national church of the kind still found in Europe. In the interest of time I will say no more about the establishment of religion, but only concentrate on the direction that the United States shall have no law "prohibiting the free exercise" of religion.

The guarantee of the free exercise of religion, which I will call religious freedom, is the first expression in the First Amendment to the United States Constitution. As noted by many, this "pre-eminent place" identifies freedom of religion as "a cornerstone of American democracy."The American colonies were originally settled by people who, for the most part, had come to this continent to be able to practice their religious faith without persecution, and their successors deliberately placed religious freedom first in the nation's Bill of Rights. So it is that our national law formally declares: "The right to freedom of religion undergirds the very origin and existence of the
United States."

The free "exercise" of religion obviously involves both the right to choose religious beliefs and affiliations and the right to "exercise" or practice those beliefs. But in a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be qualified by the government's responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens' person or property from neighbors whose intentions include taking human life or stealing in circumstances rationalized on the basis of their religious beliefs.


The inherent conflict between the precious religious freedom of the people and the legitimate regulatory responsibilities of the government is the central issue of religious freedom. Here are just a few examples of current controversial public issues that involve this conflict: laws governing marriage and adoption; laws regulating the activities of church-related organizations like BYU-Idaho in furtherance of their religious missions - activities such as who they will serve or employ; and laws prohibiting discrimination in employment or work conditions against persons with unpopular religious beliefs or practices.


The problems are not simple, and over the years the United States Supreme Court, which has the ultimate responsibility of interpreting the meaning of the lofty and general provisions of the Constitution, has struggled to identify principles that can guide its decisions when government action is claimed to violate someone's free exercise of religion. As would be expected, most of the battles over the extent of religious freedom have involved government efforts to impose upon the practices of small groups like Mormons. Not surprisingly, government officials sometimes seem more tolerant toward the religious practices of large groups of voters.
Unpopular minority religions are especially dependent upon a constitutional guarantee of free exercise of religion. We are fortunate to have such a guarantee in the
United States, but many nations do not. The importance of that guarantee in the United States should make us ever diligent to defend it. And it is in need of being defended. During my lifetime I have seen a significant deterioration in the respect accorded to religion in our public life, and I believe that the vitality of religious freedom is in danger of being weakened accordingly.
Religious belief is obviously protected against government action. The practice of that belief must have some limits, as I suggested earlier. But unless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.



Religious freedom has always been at risk. It was repression of religious belief and practice that drove the Pilgrim fathers and other dissenters to the shores of this continent. Even today, leaders in all too many nations use state power to repress religious believers.

The greatest infringements of religious freedom occur when the exercise of religion collides with other powerful forces in society. Among the most threatening collisions in the
United States today are (1) the rising strength of those who seek to silence religious voices in public debates, and (2) perceived conflicts between religious freedom and the popular appeal of newly alleged civil rights.

As I address this audience of young adults, I invite your careful attention to what I say on these subjects, because I am describing conditions you will face and challenges you must confront.


A writer for The Christian Science Monitor predicts that the coming century will be "very secular and religiously antagonistic," with intolerance of Christianity "rising to levels many of us have not believed possible in our lifetimes."Other wise observers have noted the ever-growing, relentless attack on the Christian religion by forces who reject the existence or authority of God. The extent and nature of religious devotion in this nation is changing. The tide of public opinion in favor of religion is receding, and this probably portends public pressures for laws that will impinge on religious freedom.


Atheism has always been hostile to religion, such as in its arguments that freedom of or for religion should include freedom from religion. Atheism's threat rises as its proponents grow in numbers and aggressiveness. "By some counts," a recent article in The Economist declares, "there are at least 500 [million] declared non-believers in the world - enough to make atheism the fourth-biggest religion."And atheism's spokesmen are aggressive, as recent publications show. As noted by John A. Howard of the
Howard Center for Family, Religion, and Society, these voices "have developed great skills in demonizing those who disagree with them, turning their opponents into objects of fear, hatred and scorn."

Such forces - atheists and others - would intimidate persons with religious-based points of view from influencing or making the laws of their state or nation. Noted author and legal commentator Hugh Hewitt described the current circumstance this way:
"There is a growing anti-religious bigotry in the
United States. . . .
"For three decades people of faith have watched a systematic and very effective effort waged in the courts and the media to drive them from the public square and to delegitimize their participation in politics as somehow threatening."


For example, a prominent gay-rights spokesman gave this explanation for his objection to our Church's position on
California's Proposition 8:
"I'm not intending it to harm the religion. I think they do wonderful things. Nicest people. . . . My single goal is to get them out of the same-sex marriage business and back to helping hurricane victims."
Aside from the obvious fact that this objection would deny free speech as well as religious freedom to members of our Church and its coalition partners, there are other reasons why the public square must be open to religious ideas and religious persons. As Richard John Neuhaus said many years ago, "In a democracy that is free and robust, an opinion is no more disqualified for being 'religious' than for being atheistic, or psychoanalytic, or Marxist, or just plain dumb."


Religious Freedom Diluted by Other "Civil Rights"
A second threat to religious freedom is from those who perceive it to be in conflict with the newly alleged "civil right" of same-gender couples to enjoy the privileges of marriage.


We have endured a wave of media-reported charges that the Mormons are trying to "deny" people or "strip" people of their "rights." After a significant majority of
California voters (seven million - over 52 percent) approved Proposition 8's limiting marriage to a man and a woman, some opponents characterized the vote as denying people their civil rights. In fact, the Proposition 8 battle was not about civil rights, but about what equal rights demand and what religious rights protect. At no time did anyone question or jeopardize the civil right of Proposition 8 opponents to vote or speak their views.

The real issue in the Proposition 8 debate - an issue that will not go away in years to come and for whose resolution it is critical that we protect everyone's freedom of speech and the equally important freedom to stand for religious beliefs - is whether the opponents of Proposition 8 should be allowed to change the vital institution of marriage itself.


The marriage union of a man and a woman has been the teaching of the Judeo-Christian scriptures and the core legal definition and practice of marriage in Western culture for thousands of years. Those who seek to change the foundation of marriage should not be allowed to pretend that those who defend the ancient order are trampling on civil rights. The supporters of Proposition 8 were exercising their constitutional right to defend the institution of marriage - an institution of transcendent importance that they, along with countless others of many persuasions, feel conscientiously obliged to protect.


Religious freedom needs defending against the claims of newly asserted human rights. The so-called "Yogyakarta Principles," published by an international human rights group, call for governments to assure that all persons have the right to practice their religious beliefs regardless of sexual orientation or identity. This apparently proposes that governments require church practices and their doctrines to ignore gender differences. Any such effort to have governments invade religion to override religious doctrines or practices should be resisted by all believers. At the same time, all who conduct such resistance should frame their advocacy and their personal relations so that they are never seen as being doctrinaire opponents of the very real civil rights (such as free speech) of their adversaries or any other disadvantaged group.



And now, in conclusion, I offer five points of counsel on how Latter-day Saints should conduct themselves to enhance religious freedom in this period of turmoil and challenge.

First, we must speak with love, always showing patience, understanding and compassion toward our adversaries. We are under command to love our neighbor (Luke
10:27), to forgive all men (Doctrine and Covenants 64:10), to do good to them who despitefully use us (Matthew 5:44) and to conduct our teaching in mildness and meekness (Doctrine and Covenants 38:41).

Even as we seek to speak with love, we must not be surprised when our positions are ridiculed and we are persecuted and reviled. As the Savior said, "so persecuted they the prophets which were before you" (Matthew
5:12). And modern revelation commands us not to revile against revilers (Doctrine and Covenants 19:30).

Second, we must not be deterred or coerced into silence by the kinds of intimidation I have described. We must insist on our constitutional right and duty to exercise our religion, to vote our consciences on public issues and to participate in elections and debates in the public square and the halls of justice. These are the rights of all citizens and they are also the rights of religious leaders. While our church rarely speaks on public issues, it does so by exception on what the First Presidency defines as significant moral issues, which could surely include laws affecting the fundamental legal/cultural/moral environment of our communities and nations.
We must also insist on this companion condition of democratic government: when churches and their members or any other group act or speak out on public issues, win or lose, they have a right to expect freedom from retaliation.


Along with many others, we were disappointed with what we experienced in the aftermath of California's adoption of Proposition 8, including vandalism of church facilities and harassment of church members by firings and boycotts of member businesses and by retaliation against donors. Mormons were the targets of most of this, but it also hit other churches in the pro-8 coalition and other persons who could be identified as supporters. Fortunately, some recognized such retaliation for what it was. A full-page ad in the New York Times branded this "violence and intimidation" against religious organizations and individual believers "simply because they supported Proposition 8 as an outrage that must stop." The fact that this ad was signed by some leaders who had no history of friendship for our faith only added to its force.


It is important to note that while this aggressive intimidation in connection with the Proposition 8 election was primarily directed at religious persons and symbols, it was not anti-religious as such. These incidents were expressions of outrage against those who disagreed with the gay-rights position and had prevailed in a public contest. As such, these incidents of "violence and intimidation" are not so much anti-religious as anti-democratic. In their effect they are like the well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation.


Third, we must insist on our freedom to preach the doctrines of our faith. Why do I make this obvious point? Religious people who share our moral convictions feel some intimidation. Fortunately, our leaders do not refrain from stating and explaining our position that homosexual behavior is sinful. Last summer Elder M. Russell Ballard spoke these words to a BYU audience:


"We follow Jesus Christ by living the law of chastity. God gave this commandment, and He has never revoked or changed it. This law is clear and simple. No one is to engage in sexual relationships outside the bounds the Lord has set. This applies to homosexual behavior of any kind and to heterosexual relationships outside marriage. It is a sin to violate the law of chastity.


"We follow Jesus Christ by adhering to God's law of marriage, which is marriage between one man and one woman. This commandment has been in place from the very beginning."


We will continue to teach what our Heavenly Father has commanded us to teach, and trust that the precious free exercise of religion remains strong enough to guarantee our right to exercise this most basic freedom.
Fourth, as advocates of the obvious truth that persons with religious positions or motivations have the right to express their religious views in public, we must nevertheless be wise in our political participation. Preachers have been prime movers in the civil rights movement from the earliest advocates of abolition, but even the civil rights of religionists must be exercised legally and wisely.


As Latter-day Saints, we should never be reticent to declare and act upon the sure foundations of our faith. The call of conscience - whether religious or otherwise - requires no secular justification. At the same time, religious persons will often be most persuasive in political discourse by framing arguments and positions in ways that are respectful of those who do not share their religious beliefs and that contribute to the reasoned discussion and compromise that is essential in a pluralistic society.


Fifth and finally, Latter-day Saints must be careful never to support or act upon the idea that a person must subscribe to some particular set of religious beliefs in order to qualify for a public office. The framers of our constitution included a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (Article VI). That constitutional principle forbids a religious test as a legal requirement, but it of course leaves citizens free to cast their votes on the basis of any preference they choose. But wise religious leaders and members will never advocate religious tests for public office.
Fragile freedoms are best preserved when not employed beyond their intended purpose. If a candidate is seen to be rejected at the ballot box primarily because of religious belief or affiliation, the precious free exercise of religion is weakened at its foundation, especially when this reason for rejection has been advocated by other religionists. Such advocacy suggests that if religionists prevail in electing their preferred candidate this will lead to the use of government power in support of their religious beliefs and practices. The religion of a candidate should not be an issue in a political campaign.


Conclusion
It was the Christian principles of human worth and dignity that made possible the formation of the United States Constitution over 200 years ago, and only those principles in the hearts of a majority of our diverse population can sustain that constitution today. Our constitution's revolutionary concepts of sovereignty in the people and significant guarantees of personal rights were, as John A. Howard has written,
"generated by a people for whom Christianity had been for a century and a half the compelling feature of their lives. It was Jesus who first stated that all men are created equal and that every person is valued and loved by God."


Professor Dinesh D'Souza reminds us:
"The attempt to ground respect for equality on a purely secular basis ignores the vital contribution by Christianity to its spread. It is folly to believe that it could survive without the continuing aid of religious belief."


Religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of Christianity in the public square without seriously jeopardizing our freedoms. I maintain that this is a political fact, well qualified for argument in the public square by religious people whose freedom to believe and act must always be protected by what is properly called our "First Freedom," the free exercise of religion.

Friday, October 9, 2009

Book of Mormon and Court Witnesses


Earlier today while sitting in my evidence class an intriguing question popped into my head, has a witness ever been 'sworn-in' by placing their hand on a Book of Mormon instead of the Bible?

I searched reliable websites such as Holy Fetch but I haven't been able to find anything mentioning such a scenario. Have any of you ever heard of this actually happening?

Tuesday, October 6, 2009

LDS Church hires lobbying firm to help gain status in Italy

Law.com is reporting that the LDS Church has taken the unprecedented step of hiring a federally registered lobbyist to help its efforts in obtaining a new legal status in Italy.  The LDS Church has formed a coalition with several other denominations in an effort to lobby the Italian parliament for an intesa, or "understanding."  Like many countries, Italy has different status levels for religious denominations.  According to John Zackrison, former in-house counsel for the Mormon Church and now outside counsel working at Kirton & McConkie, the intesa the Church seeks would provide benefits such as a streamlined process to license Mormon ecclesiastical leaders to perform civil marriages and easier missionary visa renewals.  There are also significant tax benefits, such as easier property tax exemptions and some charitable contribution deductions for individual Mormons.  The intesa sought by the LDS Church would actually entitle the Church to public funds, but Zackrison says the proposed draft agreement promises that the Mormon Church would never accept such funds.

These sorts of agreements take years to achieve, particularly in countries such as Italy where the government is not known for its efficiency. Additionally, the strong presence of the Roman Catholic Church impedes acceptance of new religions, causing tradition-oriented politicians to oppose such official recognition.  But now that the Mormon Church has plans for a temple in Rome, the favorable conditions of an intesa are even more important.

This is not the first time representatives of the LDS Church have lobbied government officials for various causes or issues.  The Church even maintains a Public Affairs in Washington, D.C., and has public relations and legal representatives in many countries.  However, this marks the first time that the Church has hired an outside firm to help it's lobbying efforts.   Law.com reports Zackrison  as saying: "The advice we've received is, if the U.S. government were to weigh in favor of the [agreements] in some way, that -- with the current Italian government -- could be helpful in the process . . . ."  State Department spokesperson Darby Holliday says that the U.S. government hasn't spoken with the Italian government on the issue, but the apparent goal of the new lobbying arrangement is to change that.

Photo credit: Elizabeth Buie.This content is cross-posted from LDS Law.

Wednesday, September 30, 2009

JRCLS General Conference Reception

If you happen to live in Utah or will be traveling there for General Conference, you should consider attending the BYU Law School reception for alumni and J. Reuben Clark Law Society members. It is held at the Joseph Smith Memorial Building in Salt Lake City. I've always thought it would be nice to attend, but it's probably not worth the 3,000-mile drive just to have lunch. If you are interested, today is the last day for registration. Click here for details.

Friday, September 25, 2009

Legal Briefs: No alcohol waiver, Elizabeth Smart, UC Berkeley Protest

  • LDS Church refuses alcohol waiver to Iron Gate Grill Restuarant. Herald Journal
  • Competency review set in Elizabeth Smart case. AP
  • 5,000 protest at UC-Berkeley over tuition increases, increased furloughs, layoffs. Contra Costa Times

Tuesday, September 22, 2009

Remains of abducted BYU student found

Authorities in Corvalis, Oregon, announced yesterday that they had found and identified the remains of Brooke Wilberger, a 19-year-old BYU student who disappeared in the Spring of 2004. At the time of her disappearance, Wilberger had been helping her sister clean the lamp posts of the apartment complex her sister and brother-in-law maintained near the Oregon State University campus.

The case was unusual in that a search commenced almost immediately. Law enforcement officials usually wait a few days before searching for a missing adult because adults have the autonomy to come and go as they please, but the Corvalis authorities agreed with family members that the straight-laced BYU coed was not the sort of young woman to disappear on her own. Despite the early and large-scale search and national headlines, Wilberger was not located no one reported having seen her.

Another unusual element of the case was the fact that Wilberger's long-time boyfriend was immediately ruled out as a suspect. Significant others are frequently prime suspects in disappearance cases, but Wilberger's boyfriend had an iron-clad alibi: he was in Venezuela serving as a Mormon missionary.

Eventually the investigation led to Joel Courtney, who was already doing 18 years in New Mexico for the kidnapping and rape of a college student in that state. Wilberger's DNA and hairs were found in Courtney's van, and Courtney was to go on trial in 2010 for the kidnapping and attempted rape and murder of two other Oregon State coeds, an incident that occurred on the same day Wilberger disappeared.

Yesterday Joel Courtney entered a guilty plea for the aggravated murder of Brooke Wilberger in order to avoid the death penalty. He received a life sentence without parole. As part of his plea, Courtney disclosed the location of Wilberger's body, which police later confirmed. Courtney's plea provides some closure to Wilberger's family, who have waited more than five years to know what happened to their daughter.

Monday, September 21, 2009

Tithing and ill-gotten gains

Val Southwick, the CEO of VesCor who is in prison for swindling investors out of more than $180 million. The scheme took in many people  in Utah, and many of the victims and at least some of the perpetrators are members of the Mormon Church. Last week the Salt Lake Tribune reported that Southwick had paid over $200,000 to the LDS Church in tithing, and that the LDS Church was now returning that money to be part of the restitution to the victims.


U.S. District Court filings show Val Southwick paid The Church of Jesus Christ of Latter-day Saints $202,761.74 between 2001 and 2006.

In 2008, the LDS Church Corporation of the Presidency agreed to return the money as part of a Securities and Exchange Commission enforcement action.

I don't imagine $200,000 will go very far when the total amount stolen is more than $180,000 million, but it's better than nothing. I note that $200,000 in 10% tithing would indicate an income of about $2 million over the course of seven years. It seems very unlikely that Southwick only kept $2 million of the $180 million for himself, so it sounds like he was lying to his church as well as his investors. What a guy.


The Salt Lake Tribune article noted that LDS Church spokesperson Scott Trotter says the LDS Church has a policy of not profiting from alleged ill-gotten gains. I find it interesting that the Church rejects donations derived from allegedly ill-gotten gains. To some degree this policy delegates authority to law enforcement officers and prosecutors. In this case, the initial determination of wrong-doing was made by a prosecutor or SEC officer, not the LDS Church. But the policy seems like a prudent one to me, both in terms of practicality and perception.

Wednesday, September 16, 2009

J. Reuben Clark Law Society Student Chapter Publishes First Newsletter


Recently, the J. Reuben Clark Law Society Student Chapter published their first Newsletter. The chapter is comprised of law schools from all over the country, not just Brigham Young University's, J. Reuben Clark Law School. The Newsletter is designed to bring individual JRCLS chapters closer together and promote a greater sense of community throughout all the chapters.

The JRCLS Student Chapter Newsletter is to be published monthly. Click HERE to read.

Friday, September 11, 2009

Looking to Catholicism to predict the future of Mormon church courts

Last week here was some speculation that former congressman Joseph Kennedy II might run for the Senate seat vacated by the death of his uncle, Ted Kennedy.  Mitt Romney’s name was also tossed about, but both he and Joe Kennedy have stated they would not run for the seat.  I looked up some information on Joe Kennedy and got sidetracked by an interesting quasi-legal proceeding in his past. Joe Kennedy asked the Boston Archdiocese to annul his first marriage with Sheila Brewster Rauch, but Rauch  refused to agree to the annulment. The Boston Archdiocese eventually granted the annulment over Rauch’s objections, and she later appealed to the Vatican. The annulment was overturned in 2005 by the Roman Rota, the highest appellate tribunal of the Roman Catholic Church.

I was not familiar with the hierarchy of Roman Catholic tribunals, so this process was fascinating to me. Apparently there is a rehearing mechanism that is part of the Roman Rota, in which another panel of the Rota could hear the matter again (somewhat like an en banc rehearing).  I thought it was interesting that Rauch, who is not Catholic, still had “standing,” for lack of a better word, to appeal the Boston Archdiocese’s decision.
The Mormon Church has its own system of church courts, mostly focused on the ward and stake level. My understanding is that an “appeal” from a stake disciplinary hearing goes straight to the First Presidency. I also believe that, in some situations, such as a temple divorce, a determination is made in conjunction with the First Presidency and local leaders.  (Commenters with better information are welcome to clarify or correct me as to these policies.)

The Roman Catholic Church is a much larger worldwide denomination than the LDS Church. But despite the disparity in size, the two churches have much in common because they are both centrally operated. As the Mormon Church deals with the challenges of operating in many countries, I think it would be instructive to look to Catholic procedures to see how it handles similar challenges. With a membership of over 13 million, a surprisingly large number decisions in the Mormon Church are still made at the level of the First Presidency. However, as membership and population bases spread, I can imagine a time in which the First Presidency assigns some of these proceedings to a separate body. For example, a panel of members of the Quorum of the Twelve or the Presidency of the Seventy could be assigned to examine some appeals, much as the Roman Rota would hear an appeal from an archdiocese.

Obviously, this is pure speculation on my part. But in our lifetimes we have seen the Quorums of the Seventy expanded significantly, and the general trend in the LDS Church is to designate more autonomy away from the First Presidency and Quorum of the Twelve to the Seventies and Area Authorities. So some modifications to church court appellate procedures are certainly possible.

Image credit: Cris Pierry.

Thursday, September 10, 2009

ABA Journal's Top 100 Legal Blawgs


The ABA Journal is looking for suggestions of the best legal Blawgs in the country to include in it's annual '100 Best Legal Blawgs'. Click HERE to submit your favorite blawg to the ABA Journal. I submited the Volokh Conspiracy even though I think it's the second best Blawg in the country.

Monday, September 7, 2009

Judge J. Clifford Wallace, Jurist Without Borders

This past month California Lawyer Magazine featured LDS Judge J. Clifford Wallace. He is a senior Judge on the Ninth U.S. Circuit Court of Appeals, who has been serving on the bench since President Nixon appointed him in 1972.

Wallace “has traveled to some 60 countries, advising judiciaries on everything from combating corruption to implementing mediation programs to staving off interference by a military president. His pioneering work in the international rule of law movement predates the American Bar Association's initiative in Eastern Europe by 20 years.

The silver-haired judge, who turned 80 last December, is revered as one of the world's leading experts on judicial administration. In Thailand, Wallace is referred to as "father of the courts." The chief justice of Guam considers himself "blessed" to have Wallace's guidance.

Wallace enjoys a following in the United States as well, at least among conservatives… he has taken stands in his legal writings against affirmative action, abortion rights, and physician-assisted suicide. According to a 2006 study, Wallace was the least likely of the circuit's judges to grant asylum, voting in favor of asylum seekers only 4 percent of the time. A frequent speaker for chapters of the Federalist Society and the American Enterprise Institute, on more than one occasion he was considered for a seat on the U.S. Supreme Court. In 2005 he received the Edward J. Devitt Distinguished Service to Justice Award—the most prestigious honor in the federal judiciary—and more than 60 of his former clerks turned out for the presentation.

The amount of good that the Honorable Judge Wallace has done throughout the world is amazing. He’s an inspiration we can all look to. Click HERE to read the full story.

Friday, September 4, 2009

Where to sit in the library?

It may sound like a simple question but sitting in the right spot in the library can be the difference between having a good study session or just wasting time. Because each spot in the library is different you don't want to sit in the wrong spot. There's the parts of the library that are always hot, there's the areas that are too cold, some areas have terrible lighting, some areas are louder than BYU football games, and some areas are so remote I don't like sitting in them because I feel like I might run across a homeless person who decide to make that quite part of the library their home.

For those of you who don't know what I'm talking about, sitting in the wrong spot in the library is similar to when you're standing in the candy isle trying to decide what candy bar you want. After ten minutes of contemplation you narrow your choice it down between a Snickers and Twix. You decide to go with a Snickers but as soon as you take the first bite you realize you should have gone with a Twix or maybe a Heath Bar. Similarly when you sit in the wrong spot you just know it, don't fight the urge just pack up your stuff and move to the "right spot" so you can get some good studying in.


Above is where I like to sit when I know that I'm going to be getting phone calls. There's a door at the far end of the tables that leads out onto a "cat walk" where you can talk freely. I don't want to be that guy who screams into the phone, "hello? Yeah, I can talk I'm just in the library".


This is what I call the "Penthouse Level" the view is great but I'm too lazy to walk the four flights of stairs to get up to it.



Here's one view from the "Penthouse Floor"



Here's another view from the "Penthouse Floor"



I sit in these cubicles during finals when I don't walk to talk to anyone and I really need to get quality studying time in.


I sat at the far table in the nearby row everyday for 3 semesters. Even though I think this is the best room in the library I don't study in here anymore because it reminds me of long stressful days. It's like when you eat so much of your favorite food that you just don't like it anymore.

So the next time you're thinking about where you should sit in the library or what candy bar to eat make the right decision or else you'll regret it.

Thursday, September 3, 2009

JRCLS Newsletter

Last April the J. Reuben Clark Law Society began to publish a newsletter. There still doesn't seem to be a regular publication schedule, and the August issue seems to have been published in September. But there is a lot more content in this issue than the inaugural issue, which was little more than an list of upcoming events.

I was glad to see the announcement of practice groups within the JRCLS. Groups for law professors, in-house consels have been established, as well as practice groups for IP law, litigation, immigration law, estate planning, and commercial banking/M&A/regulation. More groups are contemplated, so if you would like to see another group or join an existing group, contact Tom Isaacson through the information provided in the newsletter.

The newsletter includes several other interesting topics, including an upcoming reception for female undergraduates and attorneys and biographies of new attorneys hired by the LDS Church. The August JRCLS Newsletter is available here.

Sunday, August 30, 2009

On law school and early marriage

Kevin Barney of By Common Consent has a post about what he calls the “Mormon Early Marriage Culture.” As is often the case with such topics, the post itself is brief but the comment thread is not.  Barney talks about how he was an “odd duck” in law school because he already had a wife and child. I was married before I started law school, which also put me in the minority. But it was not an especially small minority; there were a fair number of students who had gotten married after undergrad. Some of those married students even had children while they were in school. Additionally, quite a few of my classmates were married during or immediately after graduation from law school. So perhaps young married Mormons aren’t as significant a group of outliers Barney takes them to be.

I admit that my law school classmates may not have been the most representative sample. I went to school in the South, where even the law students are somewhat more likely than their East Coast or West Coast counterparts to be religious. Or perhaps, since the legal profession is a relatively traditional profession,  lawyers and future lawyers are more inclined to follow traditional social orders. It would take another study to figure that out.

A couple years ago the U.S. Census Bureau released some data indicating that, for the first time in American history, the majority of adults were unmarried. And according to the graph below (from seattlepi.com) the median age of marriage has risen to 27.1 years for men and 25.3 years for women. I don’t know what the median age is for Mormon men and women in America, but I’m guessing it’s a couple years younger.



A few of the comments on Barney’s BCC post make some good observations. One law student commenter noted that many of his fellow law students were in long-term relationships, even though they weren’t married. This matches with my experience as well: many of my classmates lived with a long-term boyfriend, girlfriend, or fiancĂ©e, often owning property together. A generation or two ago they would have been married, but under current norms they put it off or never ultimately marry.

In a somewhat different vein, commenter John Mansfield noted that the age of first marriage for women had been creeping up after 1960, but that the average age of first marriage for men stayed steady until it shot up in 1973. He opined that this was largely due to Roe v. Wade, and that the continued lower age of first marriage for Mormons may be due to the fact that they are somewhat unaffected by the availability of abortions.

Friday, August 28, 2009

BYU's J. Reuben Clark Law School is Named a "Best Value"

The National Jurist magazine recently reviewed 65 different law schools in the country to come up with their "Best Value" law schools. National Jurist looked at the cost of tuition, job placement, bar passage rates and school rankings. BYU's J. Reuben Clark Law School came in second on the list. Congrats!

  1. North Carolina Central University- Tuition: $5,702. Bar Passage Rate: 86%. Employed at Graduation: 87%. Tier 4 school.
  2. Brigham Young University, J. Reuben Clark Law School- Tuition: $8,700. Bar Passage Rate: 97%. Employed at Graduation: 91%. Ranked 41st by US News.
  3. University of Nebraska School of Law- Tuition: $9,018. Bar Passage Rate: 89%. Employed at Graduation: 94.5%. Tier 3 school.
  4. Georgia State University College of Law- Tuition: $9,530. Bar Passage Rate: 93%. Employed at Graduation: 96%. Ranked 65th by US News.
  5. University of Mississippi School of Law- Tuition: $8,930. Bar Passage Rate: 92%. Employed at Graduation: 87%. Tier 3 school.

Monday, August 24, 2009

For new law students

Many law schools across the U.S. are starting classes this week, which means a whole new class of 1L's. It seems like every lawyer or returning law student has advice to dispense to the new law students, so I'll pitch in my three bits of wisdom. My successes and failures in law school were largely based on how well I adhered to these suggestions.
  • Work hard. It may be obvious, but it's worth stating up front. Law school is intentionally hard, and you will be competing with some of the best and brightest minds. You will also be learning to think in new patterns and with new concepts. Put the time in, do the reading, and be prepared for class. A lot of law students are naturally intelligent and may not have had to do much work to excel in undergrad. That won't cut it in law school and it won't cut it in the real world.
  • Find a schedule that works for you—and stick with it. When I was in law school I treated it like a job. I went into school in the morning and I left at the end of the day or whenever I finished my work. Some people prefer to get up early so they can be home earlier. Others like to work late. Develop a schedule that allows you to get all your work done, and stick to it. Being able to focus for long periods of time is a skill you must learn in order to succeed in law school and to succeed in legal practice after you graduate.
  • Keep your priorities straight. You may be spending upwards of $100,000 to go to law school, so it should rightly be your top priority—most of the time. But you must keep some balance in your life. It is possible to spend too much time doing school work. I've seen classmates do it, and it's unhealthy and ultimately unproductive. Make time for friends, family, scripture study, church service, and community involvement. You may even have to schedule some of these items to fit them in. Just make sure they happen. Even though law school is very important, your family or other priorities may trump your studies from time to time. And that's okay. 
I also recommend that all new 1L's (and even returning law students) read "To Beginning Law Students," a brief but worthwhile article in the December 2002 issue of First Things magazine by Arizona State University law professor Patrick McKinley Brown.

If any of the readers have better advice to new law students or things they wish they had done in law school, feel free to share them in the comments.

Photo credit: Jesse Michael Nix.

Wednesday, August 19, 2009

FLDS man's civil rights lawsuit against Mormon Church thrown out

Last week the federal District Court for the District of Arizona dismissed claims against the Corporation of the President of the Church of Jesus Christ of Latter-day Saints (Mormon Church) by a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, a polygamist sect led by Warren Jeffs that broke away from the Mormon Church. (Whew! Got those long names out of the way.) Last year Roland Cooke brought a civil rights complaint under 42 U.S.C. § 1983 against the Mormon Church and the FBI. (This case already sounds like a conspiracy theorist's dream.) The action was later dismissed and then refiled against the Corporation of the President and the Corporation of the Presiding Bishop of the LDS Church.

Late last year the defendant organizations within the LDS Church filed a 12(b)(6) Motion to Dismiss, and it was granted last Friday. The District Court actually rejected the Mormon Church's res judicata arguments, but granted dismissal on grounds that Mr. Cooke failed to state a claim under § 1983 for which relief could be granted:

In his amended complaint, Plaintiff fails to plead any facts sufficient to allow the Court to reasonably infer that Defendants were either “engaging in a traditional and exclusive public function [or] responding to state compulsion ...” Plaintiff's conclusory allegations of collusion amongst Defendants and the States of Utah and Arizona, as well as the allegation that his “property was confiscated and put in the care of ... a member of the Mormon Church[,]” are not sufficient to permit the Court to infer any sort of invidious discrimination or actionable “joint participation” between the States of Utah and Arizona and the LDS Church (citations omitted).
The outcome perhaps should not be surprising, given that Mr. Cooke was acting pro se. Fortunately for Mr. Cooke, the Arizona District Court granted him leave to file another amended complaint to try to cure his pleading deficiencies. Unfortunately for Mr. Cooke, it will be very difficult to prove state action in the current scenario under the standard in Ashcroft v. Iqbal.

Hat tip: Religion Clause.
Cooke v. Corp. of the Pres. of the Church of Jesus Christ of Latter-Day Saints