Wednesday, October 28, 2009
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.
Friday, October 23, 2009
The J. Reuben Clark Law Society motto includes the following statement: “We strive through public service and professional excellence to promote fairness and virtue founded upon the rule of law.” In keeping with this theme, J. Reuben Clark Law Society student chapters around the world will be participating in an *International Day of Service on January 22, 2010.
The service each chapter renders can be of any kind, but it is the hope that each chapter will engage in a project that enables students to use their legal skills. In addition, service projects should be tailored to the specific needs of the communities in which each JRCLS Student Chapter resides.
Included below is a list of suggestions for generating service projects:
• Partner with the local JRCLS attorney chapter to participate in a project
• Contact your law school administration about potential ways your JRCLS chapter can perform service that will benefit the school
• Partner with an organization that already exists at your law school to perform a service project
Actual service projects might include:
• Partnering with an undergraduate pre-law program to provide mentoring or LSAT tutoring to pre-law students
• Visiting a local high school government class to talk about the law school experience and the merits of graduate school
• Volunteering at a legal aid clinic in the community
Please contact JRCLS Public Service Committee Co-Chairs Elsa Jacobsen (email@example.com) or Elijah Nielsen (firstname.lastname@example.org) with any questions.
*The J. Reuben Clark Law Society National Day of Service is now the International Day of Service. We\'ve been serving the world one chapter at a time, and now, on January 22, 2010 the JRCLS Chapters will be serving the world at the same time. Join us in this momentous event as we take service to the next level.
Saturday, October 17, 2009
- The J. Reuben Clark Law Society student chapter publishes the October newsletter.
- 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
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.
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
Following the perestroika movement in the
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
For Latter-day Saints, this birth of constitutional government in
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
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,
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
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
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
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.
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
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
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
"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
"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
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.
First, we must speak with love, always showing patience, understanding and compassion toward our adversaries. We are under command to love our neighbor (Luke ), to forgive all men (Doctrine and Covenants 64:10), to do good to them who despitefully use us (Matthew ) 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 ). And modern revelation commands us not to revile against revilers (Doctrine and Covenants ).
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.
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.
Tuesday, October 13, 2009
- Mormon Senator Harry Reid calls the LDS Church's involvement in California's Prop 8; "a waste of Church resources and good will", "the resources that went into the Proposition 8 effort could have been put to better use", the Church should be "focused on other things", "it was harmful for the Church to focus on such a divisive issue." Salt Lake Tribune. I think we should listen to Reid because if anybody knows how not to waste 'resources' and 'good will' it's the Democratic leaders of this Country.
- 5 LDS Churches were vandalized in Salt Lake County. Salt Lake Tribune.
- Brook Wilberger family supporters gather at event. KPTV
Friday, October 9, 2009
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?
Tuesday, October 6, 2009
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.
Sunday, October 4, 2009
- Gilbert, Arizona city council OK's LDS Temple zoning changes. AZ Republic
- 16th Annual International Law and Religion Symposium will be broadcast live today at 7pm from the Moot Court room of the J. Reuben Clark School of Law on the campus of Brigham Young University in Provo, Utah. Click HERE to listen live.
- Women in the Law: The Importance of Education for LDS Women. BYU Law
Thursday, October 1, 2009
I have just arrived in Provo, Utah for the 2009 J. Reuben Clark Law Society Leadership Conference. It is an annual two day event for the leadership of the JRCLS student chapters and JRCLS attorney leaders. Thursday will largely be made up of various committee meetings and Friday will be highlighted by Keynote Speaker—James Ferrell, author of The Peacemaker and The Holy Secret.
I will make an effort to “Tweet” about the event as often as possible so if you’re not already following us on Twitter click HERE.