Presidential Primaries and the Religious Test Clause

Considering the fact that there are two members of the LDS church running for President, it seemed inevitable that the “Mormon issue” would rise to the surface again. Mitt Romney attempted to confront the criticism regarding his faith in the 2008 election, but it didn’t seem to quell the unwarranted fears of those that don’t understand LDS doctrine. Around the same time Mitt Romney confronted the religion issues facing his candidacy, Barack Obama was forced to fend off allegations that he was not a Christian and was, in fact, Muslim. Personally, I was shocked at how serious these religious issues were at the time. In this country of religious liberty I assumed that, as a society, our level of religious tolerance was higher than it proved to be. Last week, those ghosts of 2008 seemed to emerge all over again.

Article VI paragraph 3 of the United States Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This Religious Test Clause clarifies that United States officials, including the President, are not required to accept a particular religion or faith in order to obtain their office. Certainly, when individual Americans voice a religious preference for candidates of public office they do not violate this clause; however, acting on such a preference violates its spirit. No candidate for the presidency of the United States should be excluded from consideration simply because they are Christian or not.

One thing I noticed this past week is a relatively high level of support for the church in the face of bigoted attacks. This support, coming from the general public and the media alike, seems to be greater than it was 3 to 4 years ago. It is likely that the church and its members will continue to be under the microscope in the near future, but I have faith that the American people in general will abide by the spirit of the Religious Test Clause and choose our next President according to the vital issues of our time and not religious misunderstandings.

The Upcoming Term and Proposition 8

As a student currently taking a constitutional law class, one of my first thoughts this semester was, “Wow. My Con Law book is enormous.” In fact, I recently heard an undergrad say to his friend, “Is that guy reading the dictionary?” as they walked past me while I studied. Fortunately for me, I find most of my Con Law cases interesting. Unfortunately for future law students, that textbook is about to get bigger.

The new SCOTUS term is set to start this next week (October 3rd), and it has the potential to be one of the most influential terms in recent memory. The Court already has cases on its docket regarding ministerial exceptions and searches and seizures. However, there is a good chance the Court will also address such hot-button issues as affirmative action, immigration (Arizona’s SB 1070 case), “Obamacare,” California’s Prop 8, and the Defense of Marriage Act. Although all these topics can spark vigorous debate, the topic LDS attorneys and law students are most likely to have strong opinions about is same-sex marriage.

Although there is potential for Prop 8 (Perry v. Schwarzenegger) to be heard by the US Supreme Court this term, in my opinion it will not happen. In January the 9th Circuit Court certified a question to the California Supreme Court regarding the defendants’ standing. The California Supreme Court heard oral argument on the question earlier this month, and their decision is still pending. Simply put, this gives the Prop 8 case two possible paths: (1) the CA Supreme Court can decide there is no standing, potentially resulting in a dismissal, and (2) the CA Supreme Court can decide there is standing, allowing the 9th Circuit to make a decision on the appeal. If option 2 occurs, I think we can all agree that no matter what they decide, the case will be appealed to the US Supreme Court. However, the chances of the Supreme Court granting certiorari before this next term ends are relatively slim. One thing is certain, though: this could be a blockbuster term for the United States Supreme Court, one that will force future Con Law students to spend even more time hitting the books.

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                                                                                                                              

No smooching allowed on Mormon Main Street Plaza

Last week two gay men were arrested in the Main Street Plaza portion of Mormon Temple Square. Derek Jones and Matthew Aune were walking through the Plaza when one kissed the other on the cheek. They were then approached by security personnel asked to cease their public display of affection or to leave the premises. Apparently the Mormon Church has a policy against PDA in the area. Jones and Aune reportedly refused the request, responded with profanity, and were arrested for trespassing.

The background of the Plaza has been contentious. The Mormon Church purchased the land from the city in 2003 in a land swap deal, but the exchange was plagued by lawsuits almost from the get-go. The ACLU sued along with other parties, challenging the deal as unconstitutional because the Church could then limit speech on the property that had formerly been a public forum. The LDS Church eventually won the lawsuit and prohibited a variety of activities in the plaza, including protesting, smoking, sunbathing, and offensive conduct of any sort. The prohibition against protesting didn’t stop a group on Sunday that participated in a “kiss-in, ” but they were promptly shooed off the property when police arrived. No citations were issued.

As a matter of legal rights, I think the Mormon Church or any other private or religious organization is free to set whatever silly rules it wants. My only concern in this case is the issue of notice. I have visited Salt Lake City, but I don’t know if any signs are posted in the area with a code of conduct. Particularly given that the Plaza was once public property, some signage seems appropriate. Nevertheless, even without signage, this restriction is probably safely on the side of legality, even though it’s terrible PR. It’s also worth noting that the PDA rule is apparently enforced on both heterosexual and homosexual couples, though that doesn’t enter into my analysis of the policy’s legality.

For a first-hand discussion of the Plaza and the enforcement of the PDA rule, I recommend Ryan’s post on the subject Right Juris.

Photo credit: Edgar Zuniga, Jr.

9th Cir. rejects challenge to SF anti-Catholic resolution

(Note: This is a more thorough treatment of last week’s Legal Brief about Catholic League for Religious and Civil Rights v. City and County of San Francisco.)

In 2006 the City Council of San Francisco adopted a resolution that criticized the Catholic Church’s stance on homosexuality. Catholic Charities, like LDS Social Services, acts as an adoption agency. The Archdiocese of San Francisco had instructed the agency to not place children with gay couples, and the San Francisco City Council’s response called the policy an “insult to all San Franciscans” and “unacceptable to the citizenry of San Francisco, and also stated:

Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors 

The Catholic League for Religious and Civil Rights filed a 42 U.S.C. § 1983 civil rights suit against the City for violations of the Establishment Clause. That action was quickly tossed out on a 12(b)(6) motion for failure to state a claim, and the Catholic League appealed to the Ninth Circuit Court of appeals. The Ninth Circuit issued its ruing on Wednesday, and once again rejected the Catholic League’s claims.

At its heart, this case is an application of the misnomered Lemon test. As the Ninth Circuit cites it, the Lemon test permits government action if  it “(1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.” Failure to meet any of the three factors will cause the action to fail constitutional scrutiny.

In what I believe is a flawed analysis, the Ninth Circuit held that the City’s statement passed the Lemon test. As an initial matter, it is worth pointing out that the so-called Lemon test can be somewhat misleading, since the balancing process was really established in two previous Supreme Court cases. Under U.S. v. O’Brien and Clark v. Community for Creative Non-Violence, the courts are to balance the secular purposes of the government with the principal or primary effect of advances/prohibits religion. This is essentially the same framework the Supreme Court established to deal with accidental interferences with religion or free speech. Under the O’Brien/Clark doctrine, an interference with religion is unconstitutional if the interference is intentional. I think it is clear that the City of San Francisco’s pointed statement intentionally targeted a specific denomination and criticized its beliefs.

The Ninth Circuit found that the City’s purpose was primarily secular. I can see good arguments on both sides, since sexual orientation equality is a valid secular purpose under California law. I’m not sure I agree that the City’s purpose was to establish equality — more likely it was to criticize the Catholic Church — but reasonably minds could differ. What I find untenable is the Ninth Circuit’s finding that the primary effect of the City’s resolution did not disapprove of religion.

This is not a well-crafted opinion. The Ninth Circuit’s language on pages 11-12 of the preliminary copy of the opinion is ambiguous at best, and may even evince the judges’ predispositions. That portion of the decision refers to the City’s secular interest in promoting same-sex adoption; if the City indeed had such a goal to support same-sex adoptions over heterosexual adoptions it would be unconstitutional.

Another significant flaw in the decision was pointed out by Richard Thompson, who argued the case on behalf of the Catholic League:

“This dismissal was based on grounds that the pleadings failed to state a claim under the rules of civil procedure.  Although the panel correctly posited the rule that they must accept all of Plaintiffs’ allegations as true and draw all reasonable inferences in favor of the Plaintiffs, the court totally ignored the rule in its opinion and drew all inferences in favor the San Francisco including their intent in enacting the resolution without allowing Plaintiffs to engage in any discovery.”

Even though the decision was unanimous, Judge Marsha Berzon filed a concurring opinion that signaled at least some discomfort with government criticism of religious views. Citing Judge John Noonan’s dissent in the similar case American Family Association v. City and County of San Francisco, Judge Berzon wrote:

“. . .I am acutely aware that ‘the Constitution assures religious believers that units of government will not take positions that amount to the establishment of a policy condemning their religious belief,’ . . . and that resolutions such as the ones in American Family and the one in this case are near – if not at – the line that separates establishment of such a policy.”

In my opinion, that line was crossed in both American Family and Catholic League.

The issue is probably not settled yet — the Thomas Moore Law Center, which conducted the appeal, plans on seeking rehearing en banc.

                                                                                                                                                                                 Catholic League for Religious and Civil Righst v. City and County of San Francisco            peterrtenn                             A Ninth Circuit Court of Appeals ruling rejecting a challenge to a San Francisco City Board resolution that criticized the Catholic Church’s policies on homosexuality.                                      
Photo credit: brothergrimm.

Arizona Judge Prohibits Mormonism

Is it proper for a judge to prohibit a father from taking his children to the Mormon Church? I found myself asking this question after I read an article written by Sarah Fenske of the Phoenix New Times.

Fenske gives some background on the case. “Two years ago, Maricopa County Superior Court Judge Robert Budoff decreed that Richard Franco could not take his children to a Mormon church.”

“Never mind that Franco had been a Mormon his whole life. Or that on weekends when he had custody of his 14-year-old son and 10-year-old daughter, the extended Franco clan attended Sunday services together. Nope, Judge budoff ordered in writing that the Franco kids’ ‘only religious training shall be in the Catholic faith and that they not be taken to an LDs church or LDS church training.”

Judge “Budoff’s decision was upheld by the appellate court in December. More recently, this spring, the Arizona Supreme Court took a pass, refusing to give Franco so much as a hearing.”

Fenske continues “reading the court file, it’s clear that Judge Budoff found Franco abrasive, arrogant, and annoying. But Budoff never found Franco to be an unfit parent. The children’s parenting coordinator, in fact, described the kids as ‘thriving, intelligent, and articulate’ and said that they ‘remain bonded to both their parents,’ despite a difficult divorce.”

Mike McCormack, executive director of the Washington, D.C.-based American Coalition for Fathers and Children offered that “without a finding that he (Franco) was unfit, he was informed—make that, flat-out told—‘You can’t expose these children to your religious beliefs. That’s over the top. Do we want that micromanagement from our judiciary? From our perspective, this was a real over-reach. This is an area where judges are getting ahead of themselves, to say that children will or will not be raised a particular way…The religious training question should be left in the hands of the parents.”

Fenske raises a valid question: (religious) “plurality can make things rough once the kids reach school age. But it can also be awesome. How to better learn tolerance than to have relatives with whom you disagree? How better to sort out how you really feel about God than understanding that good people see Him in different ways?” I agree with Fenske that some of the best learning experiences I’ve had in life have come through sharing ideas with people who have different beliefs then I have. Also, growing up in Maricopa County these children are going to be exposed to Mormonism whether it’s through their father, class-mates, or friends.

Below I highlight the pertinent part of Judge Budoff’s ruling. (Read the Entire Ruling Here)

2. The Decree provided that the parties would share joint custody of the children and contained a parenting time schedule which provided that Mother would be the primary residential parent and that Father would have regularly scheduled parenting time with the children including alternating weekends.

7. Extensive testimony was presented at the September 6, 2007, hearing from the parties and others relative to the parties’ communication and cooperation with each other, the circumstances surrounding the incidences of April 13, May 27 and July 11, 2007, and the matter of the children’s religious upbringing, and from the testimony presented the following findings are made:

a. Father has been aggressive, abusive and intimidating to Mother in phone conversations, e-mails and in conference with the Parenting Coordinator.

b. Father has been rude and intimidating to Daughter’s dance director and teacher.

c. Father is controlling and dictatorial with Mother over parenting schedule issues as he does not discuss issues with her and merely dictates to her as to how issues should be resolved immediately after she refuses to accede to his wishes.

g. Father has failed to return the children on time from his parenting time periods. The Court considers this behavior to be an example of passive-aggressive behavior towards Mother which adds to the parties’ inability to trust each other and to work together with regard to co-parenting.

h. Notwithstanding that the Decree provides that the children would be raised in the Catholic faith and only attend the Mormon church if they desired to do so, it is clear that Father has intimidated and coerced the children to attend Mormon church services when they are in his care although Father has agreed that the children be raised in the Catholic religion and the children appear to be committed to this religion, Father apparently believes that regardless of the children’s wishes he should be able to take the children to his church and expose them to his religion when they are in his care. Parenting Coordinator, Dr. Waldman, believes that this is not generally in the children’s best interest. Waldman opined that the children should not be forced to choose between religions and must be directed towards one, and only one religion, during their childhood.

k. The children’s Best Interest Attorney reports that the children have a good relationship with and enjoy their time with both parents except for those times when Father forces them to go to the Mormon church.

Based upon the foregoing and having considered the relevant factors of A.R.S. 25-403 and 25-403.01, the Court finds that continuation of joint legal custody for the parents is not in the children’s best interest.

IT IS FURTHER ORDERED awarding Mother sole legal custody of the children with full final decision-making authority relative to all educational, medical and religious issues.

(the Mother) is most supportive of the children’s Catholic upbringing to which the parties previously agreed and which they affirmed in open Court

IT IS FURTHER ORDERED in accordance with the recommendations of Parenting Coordinator, Dr. Larry Waldman, and to avoid further confusion and conflict in the children’s lives, that their only religious training shall be in the Catholic faith and that they not be taken to an LDS church or LDS church training. In making this decision relative to the religious issue, a decision that this Court has, in the past, avoided when at all possible, the Court determines that the conflict between the parents over this issue and the need for the children to have consistency in this area requires that such an order be entered in their best interest.

Under ARS 25-410(A)- the parent with custody chooses the children’s religion but that is completely different than a total ban on Mormonism. When this Father has his children over the weekend is he supposed to leave them home alone while he goes to church or is he not supposed to attend church either?

Could this Court ordered ban on Mormonism be seen as an endorsement of Catholicism? Would that be a violation of the First Amendment?

Even if the situation were the same I can’t see Judge Budoff, ruling the same way if the father were a member of a different religion; he would not have banned this father from sharing his beliefs with them.

Hate crimes and hate speech

Last week the U.S. House of Representatives passed HR 1913 , the Local Law Enforcement Hate Crimes Prevention Act. This piece of legislation has been opposed by many conservative Christian groups that fear prosecution under the proposed law if a pastor spoke out against homosexuality. Howard Friedman at Religion Clause has been following the discussion of the bill , so if you’re unfamiliar with the proposal, you should check it out. Since it’s in the news, I thought I would put in my two cents about hate crime laws and the closely related hate speech laws and codes. I personally oppose them, for both legal and pragmatic reasons.

For starters, I think hate crime and hate speech laws are patently unconstitutional. There are definitely some Equal Protection problems when a crime against a member of one ethnic or racial group is treated differently than the same crime committed against a person of another group. But the primary problem with hate crimes and hate speech is that they punish thought. Even though it is deplorable, it is not illegal to hate a minority or to believe that your particular race is the superior, pure race. I think it is unconstitutional and indefensible to punish a person (or increase that person’s punishment) for believing something when those constitutionally protected beliefs are the motives for a crime. If the First Amendment protects an idea, it must protect that idea no matter how it is used.

My second reason for opposing hate crimes and hate speech is less of a legal reason and more of a pragmatic one. I noticed that the progressive think tank ThirdWay recently argued that the Hate Crimes Prevention Act is actually good for religious groups, since it would expand protection for religious groups. So it might seem that a religious person like myself should support the legislation. But from a common-sense standpoint, this is a bad idea. If we pass laws punishing constitutionally protected ideas, that opens the door for similar laws that can restrict our own ideas.

Where I went to law school the university had considered enacting a hate speech code on campus in the 1990’s, and had consulted with several law school professors and student groups in the process. One of the constitutional law professors told them it was a terrible idea and almost certainly unconstitutional, but the school was still determined to enact the hate speech code until the local Lamda fraternity weighed in. They said that they recognized the fact that the hate speech code would protect homosexual students, but they did not support the proposal. They knew that any rule or law advocating one ideology or punishing another can open the door to similar laws advocating different ideologies. Hate speech codes and hate crime laws essentially turn over to the democratic process the job of protecting the rights of minorities. But majorities can change in a relatively short period of time, and very purpose of the First Amendment is to ensure that the rights of minorities are not in the hands of the majority.

The Hate Crimes Prevention Act might afford my religious beliefs additional protections, but only how and when the current majority chooses. When the majority changes its mind, my protections go out the window. So from a pragmatic standpoint, I would oppose any sort of hate crime legislation, leaving standard penal codes to do the work they were intended to do.

Nordyke v. King: Right holding, wrong reasoning

A unanimous Ninth Circuit panel of judges recently held that the Second Amendment was incorporated (or applied) against state and local governments in the case Nordyke v. King. I haven’t read the whole opinion yet, but it looks like I agree with the outcome of the case, if not the methods the court used to reach the conclusion.

(I should mention at the outset that I don’t see Second Amendment issues as having a particular “Mormon” component. Firearms are not permitted in Mormon houses of worship, but the LDS Church has never taken a position on the appropriateness of gun control laws. My anecdotal experience with other Mormons has shown that there is a wide range of opinions on this subject within the Church. For my part, my interest in the Second Amendment is almost purely legal — I don’t own a firearm and I have never had any interest in hunting.)

The Second Amendment has a strange history with respect to state and local governments. The Supreme Court has chosen to incorporate constitutional amendments selectively against the states, usually under the Due Process Clause. Under this approach, constitutional provisions are incorporated when they involve “fundamental liberties.” In Nordyke, the Ninth Circuit panel held that the Second Amendment right to bear arms “ranks as fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty.'” In its decision the court specifically references District of Columbia v. Heller , the D.C. handgun ban case.

I agree with the court in Nordyke. I think the Second Amendment clearly should be incorporated against state and local governments to prevent unconstitutional restrictions on a constitutional right. But I, along with many legal scholars, disagree with the approach the Supreme Court has taken since the first incorporation case, Duncan v. Louisiana (1968). Justice White’s opinion for the Court in Duncan held that the defendant in that case was wrongfully convicted without a jury trial, and incorporated the Sixth Amendment jury protections against the states. However, Justice White’s opinion held that only fundamental rights within the system of Anglo-American jurisprudence could be incorporated. This produced a series of Supreme Court cases that have one-by-one incorporated almost all of the Bill of Rights against the states. The most notable exception is the Second Amendment, but there are others, including the quartering of troops, and a right to a jury in civil trials.

My thinking follows that of Justice Black, whose strident dissent in Duncan is just as valid today as it was in 1968. Justice Black asked, if only “fundamental” rights are incorporated, what determines whether a right is “fundamental”? This inevitably leads to reliance on extra-constitutional sources (such as history, cultural norms, etc.) which Justice Black thought were unreliable, easily manipulated, and unpredictable. I think this is exactly right, and I think this has opened the door for reading new and unintended rights into the U.S. Constitution, such as the ill-defined “right to privacy”. I agree with Justice Black that a better approach would be to incorporate the Bill of Rights in its entirety against state and local governments using the Privileges and Immunities Clause. The selective incorporation approach has reached similar results to that advocated by Justice Black, since almost all the Bill of Rights is now incorporated. But the Second Amendment is an obvious example of how this approach is inconsistent, so I disagree with the court’s reasoning in Nordyke.

To be clear, my quarrel really isn’t with the Ninth Circuit panel. The judges there followed the selective incorporation doctrine because they were thus bound by precedent. But as an armchair quarterback watching these cases without the burden of stare decisis, I think selective incorporation is hopelessly flawed. The good news is that the recent spat of gun control challenges is likely to result in a Supreme Court case that could overturn selective incorporation.

Photo credit:  Kevitivity.

Is federalism divinely inspired?

One passing comment from the last J. Reuben Clark Law Society broadcast that caught my attention was a reference to federalism. Elder Quentin Cook mentioned that Elder Dallin H. Oaks has opined that the federal structure set forth in the U.S. Constitution were divinely inspired. I did a bit of searching, and came up with an Ensign article entitled “The Divinely Inspired Constitution” from February of 1992. This seems to be the source for Quentin Cook’s reference. In the article Dallin Oaks states in relevant part:

Unlike the inspired adaptations mentioned earlier, this division of sovereignty [federalism] was unprecedented in theory or practice. In a day when it is fashionable to assume that the government has the power and means to right every wrong, we should remember that the U.S. Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

I think this is a pretty interesting claim. It seems like a no-brainer to say that Constitutional provisions such as the Free Exercise Clause would be inspired by God, since religious freedoms would facilitate worship and proselytizing. It is another thing entirely to claim that a specific structure of government is not only better, but actually inspired by God. Elder Oaks elaborates on his assertion:

The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government (Emphasis added).

So not only is the federal system divinely inspired according to Elder Oaks, but this is apparently the grounds for which the First Presidency opposed the Equal Rights Amendment. Contrast that, however, with the Church’s recent position on a federal constitutional amendment defining marriage between one man and one woman. Such an amendment would likely represent “a significant reallocation of law-making power from the states to the federal government.”

I should point out that I am a firm believer in federalism. But I don’t know if I consider it the product of divine revelation. I believe it to the the best governance system thus far conceived, but I don’t consider federalism to be gospel truth. The LDS Church’s inconsistent positions with respect to federalism seem to bear this out. Unfortunately, I wish the First Presidency had stuck to their guns on this one, because a federal marriage amendment presents quite a few legal problems. (For further reading on this issue, see Nate Oman’s excellent post “A Legal Analysis of the ‘Marriage Protection Amendment'”.)

Photo credit: PBS.

BYU Law alumna recounts Supreme Court case

Last month we mentioned the Supreme Court’s holding in Pleasant Grove, Utah v. Summum , in which a unanimous Court held that a 10 Commandments Monument in a public park was government speech. On the same day we talked about the case Tina Petersen, the city attorney for Pleasant Grove, spoke to a group of BYU Law School students about the case. Petersen, a 1995 BYU Law alumna, discussed her thought process when she first learned of the lawsuit in 2003:

When Peterson first became aware of the case, she began her research by asking herself and the city council an important question.

“Did we establish the monument for a religious purpose—to promote a certain religion?”

The answer, she found, was that they had not.

Then, Peterson began asking other important questions. “Do we move the monument? Do we keep it there? What are the financial ramifications for the city to defend the lawsuit at this time?”

I think it’s interesting to hear from a Supreme Court litigant about the infancy of the case. The strategic and practical considerations faced by a small city government are also important; money and workload demands prevent quite a few cases from being litigated or appealed. Eventually the City of Pleasant Grove was joined by dozens of large and powerful amici, but there was no guarantee of any outside support.

Ms. Petersen’s remarks also underscore a frightening but fantastic reality for young attorneys — you can be a part of enormously important cases, transactions, or legislation. Young lawyers in government service or public interest organizations may not make the big bucks, but they often get the big cases. That’s how an attorney just a few years out of law school working in a small city can end up working on a Supreme Court case.