New scrutiny on the billable hour

Last week the New York Times featured an article on how the down economy has forced many top law firms and their clients are reexamining the common law firm practice of billable hour. The billable hour is the focus of many young associates’ waking hours, and everyone in the legal industry recognizes it is a flawed model. Not only does it make for extremely stressful working conditions when associates are expected to bill 2400 hours or more a year, it also presents a strong financial incentive to the firm that runs counter to the interests of the clients. The Times article highlights how the poor economy has forced some of the big firms to make concessions to their clients that demand cheaper fees.

None of these critiques are new. In his now-infamous ABA Journal article “The Billable Hour Must Die,” Scott Turow recites many of the problems the billable hour poses to the profession. It creates tensions and suspicion between a lawyer and her client; it prevents lawyers from serving the public and underprivileged segments of society through pro bono work; it results in diminishing returns for ladder-climbing associates who have smaller and smaller chances of ever making partner.

The pressures of the billable hour are perhaps more acute for young LDS attorneys, who often hold ecclesiastical positions and have young children in addition to the significant burdens placed upon them by their employers. Everyone talks about a balanced lifestyle, but the current billable hour system virtually guarantees imbalance. I know quite a few LDS attorneys who have left private practice at large or mid-size firms and have entered the public sector. They all say the same thing — they don’t make as much money, but they are much happier. During law school I summered at a small immigration firm that mostly billed by project or by visa petition rather than by the hour. We still worked a few evenings or weekends when things were busy, but the stress level was significantly lower and the firm’s financial incentives didn’t conflict with those of the clients. Immigration practice might be particularly suited for that kind of billing, but I’m sure it’s not the only practice that could be more effectively without the billable hour.

In “The Billable Hour Must Die,” Turow cites the 1977 Supreme Court case of Bates v. Arizona (which invalidated previous prohibitions on lawyer advertising on First Amendment grounds) as the opening of the competitive floodgates in American law firms. And while I’m not completely naïve, I’d like to believe that the current economic turmoil might apply those same market forces in a positive way.

Photo credit: Darren Hester.

Unpopular religions at home and abroad

John F. of the popular Mormon blog By Common Consent wrote earlier this week on the German government’s treatment of certain religious denominations as dangerous or extremist groups. The main target currently seems to be Scientologists, which corresponds with similar hostility in the U.S. and other countries. John F. quotes statements by German officials calling Scientology a “dangerous” and “antidemocratic organisation” that pursues “totalitarian goals.”

Like John F., I get a little nervous when groups like Scientology come under fire. It is all to easy to imagine the same rhetoric and tactics turned on other minority religions. (I realize there are good arguments that Scientology doesn’t constitute a religion, but for the purposes of the First Amendment it does.) Last year when the group “Anonymous” began its campaign against Scientologists worldwide, I couldn’t help cringing. Most of the criticisms aimed at Scientology could also apply to Jehova’s Witnesses, Seventh-Day Adventists, Mormons, and any other minority religion. And because Scientologists weren’t popular with the press or mainstream Christians, this campaign of intimidation, cyber-crime, and copyright infringement was tacitly condoned by most people.

Jeff F. points out that the only reason Mormons in Germany haven’t been subject to the same treatment as Scientolgists and Jehova’s Witnesses is because they are marginally less unpopular. I think the same could be said of campaigns like Anonymous — they haven’t targeted Mormons only because other groups are less popular. And in the wake of Proposition 8, I see the fortunes of the Church of Jesus Christ of Latter-day Saints growing worse rather than better in the near future.

I should note that the Anonymous campaign is significantly different from the actions of the German government, in that it is private action rather than state action. The First Amendment is designed to protect religious groups and their beliefs, even unpopular ones, from governmental interference. But religious groups are supposed to enjoy similar protections in Germany under the German Constitution and Article 10 of the European Charter of Fundamental Rights. Other countries such as Canada have also treated religious and political minorities unequally despite constitutional and governmental laws to the contrary. The protections afforded to religious groups in America have been on the decline ever since the 1990 Supreme Court Case Employment Division v. Smith . It isn’t hard to imagine the U.S. government engaging in similar discrimination under the guise of national security or equality.

Prop 8 Maps and NAACP v. Alabama

California Proposition 8 is the news event that keeps on giving. The latest bit of news that has caught my attention was a rather clever mash-up of Google Maps and the California political contribution disclosure information. Under the California Political Reform Act of 1974, all political contributions over $100 require public disclosure of the donor’s name, address, occupation, and other personal information. Prop 8 Maps is a website that plots all of that information on Google Maps, making it searchable by city name or zip code.

As you might imagine, this has made many donors nervous. One group of Proposition 8 supporters already filed suit in Indiana federal court seeking an injunction. The lawsuits alleges that Proposition 8 supporters have experienced “death threats, acts of domestic terrorism, physical violence, threats of physical violence, vandalism of personal property, harassing phone calls, harassing e-mails, blacklisting and boycotts,” and that an the donor information should not be disclosed.

Ironically, there are a couple Ninth Circuit cases that might have protected this disclosure if the supporters of Proposition 8 had been fewer. But because the referendum passed, those cases would not apply. Thus, there doesn’t appear to be any case law that would allow withholding donor information of a large political group, even in the face of a hypothetically strident or threatening minority. Eugene Volokh has more discussion here, including whether technological changes (like Prop 8 Maps) should alter the calculus.

I was interested in the case because it reminded me of the situation in NAACP v. Alabama, a civil rights-era case that challenged a somewhat similar law in Alabama that required all corporations to disclose their membership or shareholders. In 1956 the State of Alabama sought to obtain a list of all the members of the NAACP in the state, and the organization refused. The resulting lawsuit was appealed up to the Supreme Court, where the Court recognized a high likelihood of a substantial restraint on the NAACP members’ exercise of their right to freedom of association. Justice Harlan wrote:

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.

The Alabama law was similar to laws in many states, and there was no evidence shown that it was recently passed or specifically tailored to apply to the NAACP. Any resulting infringement of free speech was, therefore, an accidental interference. Accidental interferences with free speech should be resolved by balancing the degree of interference with the state’s regulatory interest. In the case of the Alabama law the state had a valid interest in knowing the personal information of corporation members/shareholders, but it was vastly outweighed by the enormous interference with the free speech of organizations such as the NAACP. This was particularly important because there are few alternatives to organized political speech.

Now consider the California law that requires disclosure of political donors’ personal information if the donors contribute more than $100. At the outset, it is important to courts recognize a free speech insterest in engaging in anonymous speech, so the compelled disclosure of donor information does constitute a restriction on free speech. But almost all courts have upheld disclosure requirements on political contributions. Like the Alabama law, the California law doesn’t appear to have been enacted or amended to specifically apply to the supporters of Proposition 8, so any interference with free speech is probably accidental rather than intentional.

Once again the analysis requires a balancing of the free speech interests and government regulatory interests, but the outcome should be different in the current situation. The threats, vandalism, and harassment experienced by Proposition 8 supporters so far don’t come close to the widespread, institutional persecution and prejudice experience by civil rights supporters in Alabama in 1956. Additionally, the California law does not require disclosure of all members of groups favoring the passage of Proposition 8, or even all donors to the cause. The $100 donor threshold is admittedly quite low, but it still represents a lesser infringement on free speech interests than the Alabama law. The California law also presents stronger regulatory interests, since the disclosure of political contributors can help prevent fraud and illegal donations. These interests are designed to ensure the successful operation of the democratic system, and therefore serve some of the same goals as the First Amendment itself.

The bottom line is that the California disclosure law and any initiative using that data are almost certainly legal and permissible under the First Amendment. Projects like Prop 8 Maps are definitely creepy, and as many same-sex marriage supporters have observed, they are the “perfect tool for backlash.” I would consider it unconscionable to participate in a similar project. But this is part of the price we pay for maintaining free speech in America.

Commentary: ABA vs. Non-ABA Law School?

As many can attest, there is not a “one size fits all” approach that can be taken in choosing a law school. For most students, an American Bar Association (“ABA”)-certified school is arguably the preferred route. Nonetheless, I would submit there are limited instances where the selection of a non-ABA (but state-certified) law school may be appropriate. The key is to make the decision–whatever it is–as objectively as possible and in full understanding of the consequences. Of course I would hasten to add that from an LDS perspective, such decisions should also be made prayerfully.

Factors weighing into the decision would include (but is not limited to) the following–

  1. Whether someone is entering law school directly from an undergraduate or bachelor’s degree, or if there has been an intervening number of years of work experience;
  2. Whether that person can afford to proceed to law school without outside employment (even after considering the availability of student loans and scholarships), or whether the person must remain employed;
  3. The availability of law schools within a reasonable driving distance of home and employment;
  4. Whether the student would be willing to relocate solely for the purposes of entering into a law school;
  5. Whether the law school’s schedule will be compatible with outside employment; or in the alternative, whether a night school is available;
  6. Whether the school is ABA accredited; or in the alternative, whether one would be able to accept the implications of going to a school that only has state accreditation (including certain jurisdictional limitations on where one can practice, or possible disabilities relating to transfer or relocation to other states);
  7. Family considerations (i.e., spouse, dependants, significant others, etc.);
  8. The quality of the school(s) being considered, independent of the certification issue, including the track record of students that have have previously graduated from the school;
  9. The student’s prior accomplishments and legal aptitude (i.e., GPA and LSAT), including whether the student will be able to receive one or more scholarships at the desired school;
  10. The cost of tuition for the schools being considered (or alternatively, the estimated amount of debt one will face after completion of studies); and,
  11. One’s reasons for going to law school in the first place, and to what extent these reasons are career-oriented.

Arguably, it would seem as if the last factor would be among the most important. If one’s motive is specifically to join the top 5% of law firms anywhere in the country, or to work in a high profile position in federal or state government, the school one goes to becomes highly relevant. At the other extreme, there are those who study the law purely from the standpoint of personal interest or to supplement knowledge in one’s current career. In such instances, the school becomes somewhat less relevant.

Between these extremes are combinations of personal interest and career in various amounts, and these have to be balanced out carefully against the remaining factors as outlined above. #SJR#

Religious Freedom Day 2009

By presidential decree, today is Religious Freedom Day. President Bush issued a proclamation three days ago to create this day of observance. The date was apparently chosen to honor the passage of the Virginia Statute for Religious Freedom, passed on this day in 1786. I’m sure the fact that President Bush has less than a week left in office had nothing to do with the date.

I’m embarrassed to say that I was unfamiliar with the Virginia Statute for Religious Freedom, but I’m very happy to have it called to my attention. Thomas Jefferson apparently proposed the law in 1779, but it wasn’t passed until 1786. The document is a bit difficult to read, with more than 700 words crammed into two colossal sentences, but it is worth the effort. I find three things particularly interesting about the Statute. The first is how familiar it sounds:

. . . Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

I think the Virginia Statute for Religious Freedom articulates the same American ideals that found home in the Eleventh Article of Faith. It certainly seems to be in harmony with the Mormon Church’s teachings on the matter.

The second thing I noticed was how the concept of agency was referenced throughout the text. The Statute begins:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do . . .

 The Virginia legislators essentially explained the necessity of free agency in the Plan of Salvation. I think this is fascinating, and I wonder if this was a commonly held belief at the time.

The third and final observation I have is how the drafters of the Virginia Statute for Religious Freedom weren’t reluctant to invoke Deity in their legislation. Presumably the legislators subscribed to different denominations or ways of thought — Jefferson himself apparently subscribed to a deist philosophy — but that didn’t preclude any references to God in the Statute. This sort of language also makes it fairly clear that the concept of freedom of religion held by the so-called Founding Fathers was distinct from the views of many today.

I occasionally hear members of the Mormon Church (often around the 4th of July) express the patriotic notion that American was founded on “just and holy principles.” If you were to argue, as many have done before, that America was founded by inspired men, the Virginia Statute for Religions Freedom would be a good starting point.

The LDS Church and alcohol control policy

Over at one of my favorite legal blogs, the Volokh Conspiracy, Duke Professor Phillip J. Cook recently wrote an interesting guest-blogging series on alcohol control policy. This is very much a topic of public debate, with the recent Amethyst Initiative group of college and university presidents that have argued for a lowering of the drinking age. All of Professor Cook’s posts are recommended reading, particularly because he approaches the issue in several refreshing ways that get beyond the same old rhetoric. There’s no particularly direct tie-in to the LDS Church, but given the general admonitions of the Word of Wisdom, I think Professor Cook’s conclusions are interesting and relevant.

Does the Mormon Church have a stance on alcohol control policy? There is no item on the Public Issues page of the LDS Newsroom like there is for abortion, child abuse, euthanasia, or embryonic stem-cell research. However, last September the Newsroom issued a press release entitled “Alcohol: A Focus on Health and Safety,” which stated; “The Church has always called for reasonable regulations to (1) limit overconsumption, (2) reduce impaired driving and (3) work to eliminate underage drinking.” The statement is heavily focused on the State of Utah, where the Mormon Church has large membership and community involvement.

The positive consequences of Utah’s current regulations on alcohol consumption are readily apparent. According to the U.S. Census Bureau, Utah has the lowest percentage of alcohol-related motor vehicle deaths in America. It also has the lowest per-capita alcohol consumption in the nation.
The Church of Jesus Christ of Latter-day Saints believes that Utahns, including those who work in the hospitality industry, can come together as citizens, regardless of religion or politics, to support laws and regulations that allow individual freedom of choice while preserving Utah’s proven positive health and safety record on limiting the tragic consequences of overconsumption of alcohol.

The LDS Church’s stance on alcohol control is a relatively pragmatic one. The same statement notes, “While The Church of Jesus Christ of Latter-day Saints teaches its members to avoid alcohol altogether, it acknowledges that alcoholic beverages are available to the public.” It seems to me, then, that the LDS Church would not advocate a Prohibition-style alcohol restrictions, but rather a system of regulations that would minimize the harmful effects ofoverconsumption, impaired driving, and underage drinking.

With those goals in mind, what sort of regulatory scheme is preferable? This is where Professor Cook’s comments are enlightening. He notes that regulations aimed at the negative behaviors associated with alcohol consumption are relatively costly and difficult to enforce. His solution is to aim for the pocketbook. Professor Cook argues that the current taxation levels of alcohol are at historic lows and are insufficient to take into account the cost to society of alcohol. He follows this assertion up with some data on alcohol consumption and an interesting hypothetical:

Per capita consumption in the United States runs about 500 drinks per year, where a “drink” is a 12-ounce beer, a 5-ounce glass of wine, or a 1.5 ounce shot of 80-proof spirits (all of which have about the same amount of ethanol) But that average also conceals a great deal of variation: about 35 % of adults abstain, and drinking is very concentrated within the larger group who do drink.
The famous 20-80 rule of marketing applies – 20% of the consumers of most any commodity account for 80% of the total purchased. Removing the abstainers, that means that 13% of adults consume 80% of the ethanol, and thus pay 80% of the tax. (I’ve checked this estimate against actual self-reported drinking, and it works pretty well.)
What’s more, only about 7% of adults drink more than that 500-drink per capita average. That means that 93% of the American public contribute less than average to the alcohol tax.
As a thought experiment, consider increasing the alcohol tax by 10 cents per drink and then distributing the proceeds annually to every adult, $50 each. All but 7% would come out ahead on this deal. Given the preventive effect of higher alcohol prices, even that group would benefit from lower auto insurance rates and in other ways.
This thought experiment reminds us of the nice feature of alcohol taxes – unlike other prevention measures, this one generates revenue. And taxes no longer seem quite so crude or unfair, being nicely concentrated on the heaviest drinkers where we also find most of the abuse and social costs.

Taxation isn’t my area of expertise, but this proposal piqued my interest. I doubt it would be a politically viable proposal, but it sounds great on paper. Professor Cook then discusses the more important question of how much each drink should be taxed. If a decrease in alcohol consumption causes a decrease in drunk driving deaths, child abuse, and crime, a purely health and safety approach would advocate a rate of taxation so high as to virtually eliminate (legal) drinking. This is obviously infeasible. Professor Cook writes:

The most defensible approach in my mind is to set the tax equal to the average marginal social cost of a drink, perhaps with some distinctions between beer and spirits, or between on-premise and off-premise service. Estimating the precise levels would require careful up-to-date analysis. But we don’t have to do that precise analysis to know for sure that the social costs are much higher than the current tax rates. In particular, the increases that are being proposed by various governors this year are just a small step in the right direction, far less than the full social costs.

I agree with this approach, at it would seem to fit the Mormon Church’s recommendation for a reasonable regulation to limit overconsumption, impaired driving, and underage drinking.

Photo credit: Ben McLeod.

Commentary: One Path to Becoming an LDS Lawyer

Early this past week, in response to information I received from my local chapter of the J. Reuben Clark Legal Society, I made inquiry to Brother Dunaway regarding this blog. Not long thereafter, I was welcomed as a contributor, making this my very first post. Later the same week, I was introduced before the bar of the Federal Court for the Middle District of Tennessee, and officially was admitted there.

So it’s been a week of beginnings.

But in introducing myself and the posts I anticipate I will publish here, I wanted to take a moment (–all right, perhaps a few moments–) to talk about two other beginnings: The one which led me to the restored gospel, and the one which led me to the law.

For it came to pass that for much of my life, I had experiences with neither. In the first place, I was brought up in a secular family, with my Dad’s side of the tree being Jewish, and my mother’s side having Christian–or at least Gentile–origins. And in the second place, my undergraduate degree was in computer science–not law–and among my first jobs following graduation was to design and code changes to mainframe computer programs.

As important as the first beginning is, I will only touch upon it by way of reference. For in my earliest experiences with EDS, I was introduced to a colleague and mentor who had introduced the Gospel to me, beginning with, of all things, a family blessing over a bowl of french onion soup. Many missionary discussions and over a year later, I came to a testimony of my own, and in 1993, was baptized. At my family’s website, I provide a more detailed account, which is referenced further in the October 2008 Ensign (“Online Outreach,” Comments section).

Thus, on towards my second beginning. For me, the road to law began rather quietly. The seeds may have been planted during my undergraduate years when I was assigned to write a term paper regarding censorship in the public schools, and in the process needed to reference a number of appellate and Supreme Court opinions. In reading through the reporter volumes, in ways I am unable to describe or express, an interest was kindled, even to the point where I found myself reading opinions that were entirely off topic. At the conclusion of my project, I filed these things in the back of my mind. After all, my professional goal was to work with computers, not to practice law, and anyway, it’s difficult to change academic goals mid-stream.

Even so, I was interested enough to later request information from BYU regarding its law school, which I promptly filed away as well.

A number of years passed. I was in a seemingly stable career, had married Melinda in the Nashville Temple, and had one child on the way. At work, though, I could sense a number of changes happen around me, and I began to question whether my skills and talents that I had then could sustain me over the long term. Melinda and I talked about these concerns. Then, as I was cleaning out my file cabinet, I happened upon the BYU literature that I had requested some years before. Melinda looked through the documents and asked, “Why don’t you again consider a law degree?” It was a question I took seriously, and when we prayed over the question, I felt a clear and unmistakable prompting that it’s what I should do.

But how? I wasn’t in a position to become a full-time student, I could not quit my job, and I was in even less of a position to move. So I initially dismissed the prompting. Even so, Melinda suggested that I register for the LSAT anyway, just to see how I would do. I agreed, and I registered to take the test the following February. Surely there would be no conflict with the test schedule, I thought to myself — after all, our baby wasn’t expected to be born until near the middle of April, and the pregnancy seemed to be uneventful.

As it turned out, due to a medical emergency, our daughter Andrea had to be born ten weeks early, during the same week as the LSAT. I had my test preparation manuals, but I was mentally in no shape to use them. I was then spending much time at Vanderbilt University Medical Center checking on Melinda, who was then recovering from an unplanned C-section, and Andrea, who was beginning her life at the neonatal intensive care unit. Her future in particular appeared very uncertain at that point. I asked Melinda, as she was yet in bed recovering, is there any way I could go forward with the LSAT? Her inspired reply was: Take it anyway.

I might still not have taken the test but for the fact that the NICU was located literally within walking distance of the university’s law school, where it was to be administered. So only four days after Andrea was born, I left the NICU, walked over to the law school, somehow was blessed with enough presence of mind to work through the test calmly, then returned to the hospital. I later learned I had scored just slightly above average — not a stellar performance by any means, but it was a miracle under the circumstances. Not long after that, Melinda happened upon a local law school that was structured around nighttime study, and there’s where I ultimately went.

There were repeated promptings during law school itself, usually during times of significant stress or trial. I may touch on these experiences in later articles. But for now, I hope it is sufficient when I saw that I was not left comfortless during these times. There were repeated assurances through the Holy Ghost that somehow, some way, I would have the requisite capacity to complete my studies and to pass the bar exam. And now it has come to pass. In fact, I did pass the bar exam on the first attempt, and prior to that, had managed to graduate with honors, finishing in the top 5% of my class.

And in yet another sign from above that the transition to law was needful, my former position with EDS ultimately collapsed, and I was terminated literally in the same month that I graduated from the law school. Today, I have a private practice in a small town south of Nashville, Tennessee. And in my office, I have pictures on my wall to make it very clear at the outset that I’m a Latter-day Saint, beginning with pictures of Jesus Christ and the Salt Lake Temple in my reception area.

Every path to the legal profession is unique. But I would submit that some experiences are more unique than others, and this is perhaps one of them. Still, the common thread is this: If, in the year of my college graduation, someone were to tell me that I would become a Christian and later become an attorney, I would have responded that he would be crazy for saying that even one of these things would happen. What made the difference in both cases was in following the promptings of Holy Ghost. And this is how it is possible to embark upon such an unconventional path as mine.

Just very quickly in closing: I presently serve as the second assistant in the High Priests group, and Melinda serves as a second counselor in the Young Women’s presidency. And from all indications, Andrea recovered fully from her rough start in life. Bright in both personality and intelligence, she does very well in school these days. She even reads at the fourth grade level, even though she is only part way into first grade, and insists often on watching the NASA satellite channel.

As with all blogs, more to follow. I leave these things in the name of Jesus Christ, Amen.

–Sander J. “Sandy” Rabinowitz is an attorney whose solo practice is located in Columbia, Tennessee.

2008 a year of headlines for the Mormon Church

Howard Friedman of Religion Clause recently posted his Top 10 Church-State/Free Exercise Stories of 2008. Significantly, the LDS Church comes in at #2.

2. The Mormon Church (Church of Jesus Christ of Latter Day Saints) gains widespread national attention after Mitt Romney seeks Republican nomination and LDS members are active in opposing California’s Proposition 8.

The Church also played a prominent role in the clash between religious liberties and sexual orientation non-discrimination (#3), the high-profile raid on the FLDS Church compound in Texas (#5), and the challenge to IRS rules on church involvement to political campaigns (#6). Other similar lists, such as the one by Time Magazine, carried similar rankings. For better or for worse, 2008 was a banner year for the Mormon Church in the news.

Church property and public use

Last month the New Jersey Division of Civil Rights found probable cause in a discrimination claim brought by a lesbian couple against a religious group that refused to rent its property to the couple to perform a civil union ceremony. The Ocean Grove Camp Meeting Association is non-profit group affiliated with the Methodist Church, and until recently it rented out its Boardwalk Pavilion to the public for receptions and other events. In addition to being rented for events, worship services were held there every week. The rest of the time the Pavilion was completely open to the public. However, the Association refused to rent the Pavilion to Harriet Bernstein and Luisa Paster for their civil union ceremony because such unions conflicted with the Association’s beliefs. United Methodist Church policy “recognizes marriage only in terms of a covenant relationship between one man and one woman,” and provides that civil union ceremonies “shall not be conducted by our ministers and shall not be conducted in our churches.”

In its Finding the NJ Division of Civil Rights held:

When it invites the public at large to use it, the [Ocean Grove Camp Meeting] Association is subject to the [New Jersey] Law Against Discrimination, and enforcement of that law in this context does not affect the Association’s constitutionally protected right to free exercise of religion.

The Association stopped renting the Pavilion for events after April 1, 2007. Another lesbian couple tried to rent the facility after that point and sued when they were rejected, but the NJ Division of Civil Rights rejected that case.

I’m not licensed in New Jersey but I have a few thoughts on this issue. The clear message from the New Jersey Division of Civil Rights is that churches should think twice before they make their property available to the public. For the most part, the Mormon Church is ahead of this trend, controlling most of its property in such a way that it could not be construed to be public use. However, the result of the Division’s ruling is lamentable, since it prevents certain religious organizations from providing a service to their communities.

Secondly, this case underscores the growing conflict between the gay rights movement and religious liberties. Presumably, a different religious organization that does not object to same-sex marriages or civil unions would still be free to operate a facility such as the Boardwalk Pavilion. This can have significant tax financial implications for religious organizations. In this case, the Association had received a tax exemption under the New Jersey Green Acres program, which provides tax benefits to organizations that make their land available for public use. The Boardwalk Pavilion property’s tax-exempt status was revoked by the New Jersey Department of Environmental Protection after the Association stopped renting the property to the public. This case reminds me to some extent of the famous Bob Jones University Supreme Court case.

The Religion Clause notes that an appeal related to this case is pending before the 3rd Circuit, so we haven’t heard the last of the Boardwalk Pavilion.

Photo credit: Asbury Park Press.

Denial of Burris in the Senate recalls the Reed Smoot Hearings

One of the major headlines in the news this week was the denial by the U.S. Senate of Roland Burris, the man appointed by beleaguered Illinois Senator Rod Blagojevich to assume President-Elect Barack Obama’s Senate seat. This may sound somewhat familiar to some of you, since a similar (but more extreme) incident occurred in the history of the Mormon Church when Reed Smoot was prevented from taking his seat in the Senate. The Huffington Post carried an article by Chris Weigant about the denial of Roland Burris in which Weigant highlighted the Smoot case as only the second time the Senate blocked a Senator from taking his seat. The first rejection was that of Hiram Revels, the first African-American Senator in 1870.

The second historical case is where the Senate again showed its bigotry by attempting to block the first senator from Utah, after it was admitted as a state. Reed Smoot was blocked from voting (although the Senate did allow him to be sworn in) for two years while the Senate investigated not just whether Smoot was a polygamist (he wasn’t) but also dissected the entire Mormon religion.

Last year Weigant wrote about the Smoot Hearings, and he referenced a portion of that piece in the Huffington Post article:

[W]hile Smoot wasn’t a serial marriage type of guy, he was pretty high up in the church hierarchy of the Latter-Day Saints (LDS). So the entire LDS church was put under the public microscope of a Senate investigation. Two full years were spent examining the Mormons, and the head of the church was called before the committee to be grilled on every aspect of the Mormonism, down to secret church rituals and dogma. The media of the day went along for the ride, with scandalous charges printed along with demonizing political cartoons. The hearings were packed, with lines outside for spectators to view.

Weigant also cites the preface of Vanderbilt professor and historian Kathleen Flake’s book, The Politics of Religious Identity.

The four-year Senate proceeding created a 3,500-page record of testimony by 100 witnesses on every peculiarity of Mormonism, especially its polygamous family structure, ritual worship practices, “secret oaths,” open canon, economic communalism, and theocratic politics. The public participated actively in the proceedings. In the Capitol, spectators lined the halls, waiting for limited seats in the committee room, and filled the galleries to hear floor debates. For those who could not see for themselves, journalists and cartoonists depicted each day’s admission and outrage. At the height of the hearing, some senators were receiving a thousand letters a day from angry constituents. What remains of these public petitions fills 11 feet of shelf space, the largest such collection in the National Archives.

If the previous Senate denial cases have taught us anything, it is that this is dangerous ground. Virtually all legal scholars from Erwin Chemerinsky to Eugene Volokh agree that until Governor Blagojevich steps down or is removed, he maintains the legal authority under Illinois law to appoint a replacement when a U.S. Senator from Illinois vacates his seat. And as UC Irvine Law Dean Erwin Chemerinsky wrote, “Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.” The 1969 Supreme Court case Powell v. McCormack makes this pretty clear: “the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.” Alas, Powell was decided nearly a century too late for Senator Smoot, but perhaps it can quickly dispense with the current senatorial shenanigans.