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 fiancée, 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.

From the Blawgernacle – August 1, 2009

If you read legal blogs you know that they are often called “blawgs,” an extremely unimaginative combination of the words “law” and “blog.” Similarly, the Mormon portion of the Bloggosphere is often given the horrendous name “Bloggernacle.” I don’t know if there is a name for the legal corner of the Bloggernacle, but I’m calling it the  Blawgernacle until I can think of a better name.

I wanted to highlight a few good posts from the newly-christened Blawgernacle that have been posted in the last week. The first is by Geoff B. of Millennial Star about the Mormon angles of the Robert Bork Supreme Court nomination hearings. He mentioned a few interesting tidbits, including the fact that Bork and a young associate named Dallin Oaks helped end a “Jewish quota” at Kirkland & Ellis in Chicago. Geoff’s article is here.

The second post of note is by Blawgernacle notable Nate Oman of Times & Seasons on “The Evolution of Excommunication.” The development and interaction of LDS Church courts with the American legal system is on of Oman’s areas of interest, but I thought this post was especially interesting. Oman looked at old Church Handbooks published in 1890, 1920, and 1940, and he identifies a shift in focus from remedying past wrongs to seeking the spiritual welfare of the individual. Anyone familiar with criminal legal theory will recognize that this shift is similar to the shift in criminal law from retribution or isolation to rehabilitation.  Oman’s article is here.

A confusion of categories

I occasionally use a couple blog aggregators to find interesting posts in the Bloggernacle. Some of them group blogs by popularity; others by category. Imagine my surprise when a few of our recent posts ended up in the Sexuality category of one such aggregator.

Really? Does anything related to Prop 8 have to do with sexuality? I guess remotely, but that’s not exactly the focus. Although it would be interesting to see if our readership increased as a result. They say sex sells.

Disciplinary councils as alternative legal structures

Last week Steven Danderson of FAIR Blog linked to a paper on the LDS Church’s disciplinary council system as an alternative legal structure. Danderson initially attributed the paper to Santa Clara University law professor David D. Friedman, and the paper was hosted at Friedman’s site. I thought the paper was interesting, but it didn’t take me long to conclude that it wasn’t written by Friedman. The piece is more expository than analytical, it seemed more probable to me that the paper was written in the perspective of someone within the Mormon Church.

Fortunately, we have a little inside information from another Bloggernacle denizen, Keri Brooks, who is actually at SCU Law right now. She revealed that the paper was actually written by an anonymous student in Professor Friedman’s seminar “Legal Systems Very Different From Ours,” and a little digging in Friedman’s website bears that out.

The immediate lesson to learn from this is to watch how you attribute material online. (Danderson still hasn’t updated or amended his post to clarify the paper’s authorship.) But I still appreciate his calling attention to the paper because Mormon disciplinary councils are an interesting topic, and I haven’t seen much written on the topic. I know William & Mary Law professor Nate Oman has written on Mormon Church courts before and after the Utah territory became a state, but his article is more of a historical perspective than a current analysis. Mormon disciplinary councils are interesting for a variety of reasons, including the fact that they are derived in part (though not entirely) from Anglo-American legal traditions, and yet they operate in a wide variety of countries that have legal traditions far different from Anglo-American jurisprudence.

The paper on Professor Friedman’s site is not long, so give it a look-see, especially sections IX – XI.

Update: Danderson amended his post to clarify the paper’s authorship.

LDS Church grapples with missionary immigration issues

Over the weekend the Salt Lake Tribune reported on an LDS missionary returning home from his mission was detained in the Cincinnati Airport for lack of documentation. The young man apparently was an undocumented alien, and his arrest has sparked new discussion about how the LDS Church deals with immigration issues.

Until 2005 this particular situation did not occur in the U.S. because religious organizations would be criminally liable for allowing undocumented workers to perform volunteer service (such as missionary service). Young men and women were not eligible for missionary service in the U.S. unless they had legal status; otherwise they would have to return to their countries of origin and apply from there. However, the law was changed by a bill amendment sponsored by Senator Bob Bennett (R-Utah), and the LDS Church stopped disqualifying missionary applicants based on immigration status.

With the arrest of the missionary earlier this month, those arrangements will likely change. Immigration and Customs Enforcement (ICE) has stepped up enforcement in recent years, including bus stations and airports. The Mormon Church’s travel department has always had to deal with immigration issues, since the approximately 50,000 LDS missionaries serve in many countries worldwide. Due to the varied and often inconsistent manner in which immigration law is handled in other countries, Mormon missionaries have on occasion been arrested in other countries due to visa issues. However, this is the first time that a Mormon missionary has been arrested in the U.S. in recent memory.

Last month we had a similar discussion about whether there there was a conflict created by baptizing illegal residents in U.S. And just as in that situation, different people are of different opinions as to what should be done with illegal immigrants who want to do full-time missionary service. By Common Consent has a post about the arrest and a lengthy comment thread. Not all of the comments are particularly informed, but they at least give an idea of the range of opinions.

I don’t see this as a particular tough problem for the LDS Church. If it’s not illegal to send undocumented aliens on missions, I don’t think the Mormon Church has done anything wrong. An alien out of status in the U.S. is at no more risk serving as a missionary as he or she would be going to school or working a job. The major issue is with the undocumented alien, not the Church. However, if ICE starts targeting Mormon missionaries, that may change. I think the LDS Church may soon reconsider the situation of these young missionaries, since it doesn’t want to be in a position where its young volunteers are harmed by volunteer service.

Photo credit: versageek.

Nate Oman on Mormons as Minorities

William & Mary Law prof and Times & Seasons blogger Nate Oman posts the audio of a presentation he gave to the William & Mary chapter of the J. Reuben Clark Law Society. I’ve heard Oman speak before, and he has done quite a bit of research on Mormon legal and political history.

Oman’s topic in this presentation is on “Mormons and Minorities,” and I think it’s very interesting. The audio is a bit rough — I think someone recorded it from the audience — but I recommend giving it a listen. If I can get a written version of the presentation I’ll post it later.

Nate Oman – Mormons as Minorities

President Monson on Twitter. Or not.

As some of you may have noticed, we recently started using a Twitter account to let people know when we post new stuff or when new events come up. There is apparently a small but growing segment of LDS Twitter users, and we thought it might be useful to some people. There are a few Mormon-themed organizations that have Twitter accounts, one of which is the LDS news site Mormon Times.
This morning the Mormon Times Twitter account tweeted (what a stupid verb!) about a user who had set up an account purporting to be President Thomas S. Monson, current leader of the Church of Jesus Christ of Latter-day Saints. This account was set up yesterday, but it’s not a new idea: I checked around and found a couple different Monson impersonators on Twitter, though the others don’t seem to be taking the act as far. After only a day the new Monson impersonator has over 150 followers, but not everyone is fooled. One user even pointed out that the Faux Monson misspelled his wife’s name.

Like everything else online, use of Twitter is governed by the Terms of Service, which include and Impersonation Policy. Interestingly, the Impersonation Policy makes specific provision for parody Twitter accounts, apparently recognizing the limitations imposed by cases such as Campbell v. Acuff-Rose Music, the landmark copyright case against 2 Live Crew‘s parody version of “Pretty Woman.” The Twitter Impersonation Policy pages states:

The standard for defining parody is, “would a reasonable person be aware that it’s a joke.” An account may be guilty of impersonation if it confuses or misleads others—accounts with the clear INTENT to confuse or mislead will be permanently suspended.

Under this standard, I think it’s pretty clear that Faux Monson is violating the Twitter Terms of service. The account currently has nothing ironic or joking about it — the user is acting as if he or she were Thomas Monson, claiming to be the official account. The page also carries a photograph of the real Thomas Monson and links to an LDS Church website about him.

The impersonation may also violate federal law under the Computer Fraud and Abuse Act (CFAA). Specifically, the impersonation may violate 18 U.S.C. § 1030(a)(2), which is an extremely broad provision that bars intentional unauthorized access or exceeding of access of any computer. Here, since the use violates the Twitter Terms of Service, it is potentially unauthorized (or exceeds authorization). This provision is has been held to apply to all computers connected to the Internet, including server-side systems. Even more dramatic, CFAA provides for significant damages or up to 10 years jail time, sometimes without even showing any evidence of harm caused by the violation.

Before you get all riled up, I don’t anticipate a lawsuit. That would be a waste of time and resources, and the LDS Church wouldn’t even bother. Some of the fake Monson Twitter accounts have been around for nearly a year, and I’m sure other social networking sites have similar impersonators. However, there is some danger of misunderstanding or miscommunication. The Office of the First Presidency could always keep tabs on the impostors, and request that they be terminated by the service provider if things get out of hand. Or better yet, perhaps people should not be quite so gullible and link up with false accounts.

Earlier this month Sander wrote about the LDS Church’s increased online presence, and how positive it can be. But the Faux Monson is an example of the potential down-sides of Internet involvement. A false Twitter account is relatively inconsequential, but I can imagine more serious scenarios. I think the benefits outweigh the occasional annoyances, but Church representatives will have to be aware that more issues like this will appear in the future.

Thoughts from the JRCLS Broadcast

Hopefully many of you got to watch the J. Reuben Clark Law Society Annual Broadcast that was last Friday. Elder Quentin L. Cook of the Quorum of the Twelve Apostles was this year’s speaker. Elder Cook is a relatively recent Apostle, sustained about a year and a half ago, so I wasn’t really familiar with him or his personality before listening to the broadcast. I thought his remarks, which ranged over several topics, were thoughtful and quite relevant. I guess I wouldn’t expect anything less from successful former Bay Area attorney.

My first impressions of the broadcast were completely sidetracks. First of all, they really need to work on the sound in the Small Theater of the Conference Center. The mike was way too hot, picking up every footstep on stage. Secondly, does every event associated with the Mormon Church require a musical number? The music itself was fine, but would have rather done without it. My final irrelevant (and irreverent) thought was about Cynthia Lange, the former JRCLS Chair of the Community Service and Outreach Committee. When she started her introduction I thought, “Oh no, even female attorneys can succumb to the dreaded ‘Relief Society voice.'” I don’t hear that tone anywhere else outside of church functions, and I find it not a little creepy.

On a more relevant note, I found some of the topics Elder Quentin Cook discussed quite interesting. For example, he referenced two recent articles in Forbes Magazine and the New York Times that criticized the legal profession’s use of the billable hour. Apparently great minds think alike: We referenced the same Times article last month when we talked about the stresses LDS attorneys face while working under the billable hour.

Elder Cook discussed the U.S. Constitution, mentioning how both J. Reuben Clark and Dallin Oaks have expressed the opinion that the document was inspired. Elder Cook was careful to point out that not every word of the Constitution is inspired (the 3/5 Compromise of Art. I § 2 comes to mind), but he mentioned two key provisions that he felt were inspired by God. The first was the concept of “the Pursuit of Happiness,” and how this extended well beyond the right to property. Elder Cook was careful to mention that more money doesn’t necessarily mean more happiness, a mindset to which attorneys often subscribe. The same is true for prestige and position: Elder Cook said something to the effect of, “The respect for credentials can virtually become idols.”

Elder Cook also opined that the protections afforded to religious practice in the Constitution were also inspired by God. He mentioned incidents in the early history of the Mormon Church when those protections weren’t always recognized, and how they are still absolutely necessary today. I wholeheartedly agree — we have touched on this topic a few times in the past.

The final thing I remember Elder Cook talking about was the duty LDS attorneys have to represent the Church. I think this can be done both directly and indirectly. Elder Cook specifically mentioned the use of interactive media, like blogging, which is near and dear to our hearts. Obviously, no one on this blog speaks for the Mormon Church or its positions, but the idea is to explore the convergence of legal issues and the Mormon faith.

However, my personal opinion is that the indirect representation of the Church is the most important. For example, there was a prominent attorney in the city where I live that everyone knew was a member of the Church. The local legal community recognized his faith as well as the fact that he was a good lawyer. Even today, many years after he moved to another city, his good example still reflects positively on the Church and other LDS attorneys here.

The JRCLS usually publishes the transcripts of broadcast addresses, so expect to see Elder Quentin Cook’s remarks on the JRCLS website at some point. This summary is by no means exhaustive, so if any of you remember other topics or have other thoughts, feel free to chime in.

George Q. Cannon’s review of Reynolds v. U.S.

I occasionally like to point out interesting law-related posts that I stumble across in the Bloggernacle (what a terrible name, that). William & Mary law prof Nate Oman of Times & Seasons has a brief post up about a publication George Q. Cannon wrote with the lengthy title of A Review of the Decision of the Supreme Court in the Case of Geo. Reynolds v. the United States. Cannon’s Review discusses the 1879 Supreme Court case that held that the practice of plural marriage was not protected by the Free Exercise Clause. I understand that this case is still carried in many constitutional law texts because it was the first Supreme Court decision to tackle the issue head-on, but I don’t remember reading it in law school. I’ve been perusing Cannon’s Review this afternoon and I think it’s fairly accessible and interesting for a legal text of that time period.

Oman notes that Cannon may have had help drafting the Review, but that “the pamphlet shows a surprising familiarity with American constitutional history, theoretical jurisprudence, and criminal law.” I don’t think the Review is still in publication anywhere, but thanks to the bounties of the public domain and Google’s Book Search project, you can read it online or download a PDF.