How Maine Q. 1 is different from Prop 8

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

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

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

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

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

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

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

LDS Church hires lobbying firm to help gain status in Italy

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

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

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

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

Mormon missionaries will be excluded from 2010 Census

The excellent Howard Friedman of Religion Clause writes today that the Census Bureau has decided that the upcoming 2010 Census will not count Mormon missionaries who are living overseas. This was a big issue for the State of Utah, which narrowly missed gaining an extra congressional seat in 2000. Instead, the seat went to North Carolina, which has several military bases. Military service members living in other countries are counted in the census, but missionaries and other U.S. citizens living abroad are not. There are an estimated 11,000 Mormon missionaries from Utah that are living overseas. Utah challenged the census methods in a 2002 Supreme Court case, Utah v. Evans, but was unsuccessful.

The current Census Bureau policy counts military service members, federal employees, and citizens on merchant vessels. Other groups of U.S. citizens living abroad are not counted. Representative Bob Bishop (R-Utah) has opposed the policy as unfair an inaccurate. The most recent challenge to Census policies does not contest the counting of military members or federal employees, but instead argued that other groups (such as Mormon missionaries) should also be counted. I actually think this argument has some merit, particularly since the Census Bureau currently counts people on merchant vessels. Military service members and federal employees are serving their country, and may therefore be entitled to special treatment. But how is a crew member on a merchant vessel different from a missionary or a businessperson or a Peace Corp volunteer living abroad? The Census Bureau responds to these criticisms that they have found no feasible way to accurately count every American overseas.

There was a brief attempt earlier this year to change Census policies through congressional act, but the bill (S.160) (PDF) failed in the House when members of Congress attempted to use the bill as a vehicle to invalidate D.C.’s firearm restrictions. 

Further reading:
Religion Clause: 2010 Census Again Will Not Count Overseas Mormon Missionaries
Salt Lake Tribune: Census count to exclude overseas missionaries—again
U.S. Census Bureau: Issues of Counting Americans Overseas in Future Censuses

Photo credit: noneck.

Mormon leaders meet with President Obama

Yesterday President Barack Obama had a meeting with President Thomas S. Monson of the Church of Jesus Christ of Latter-day Saints. Two well-known Mormon lawyers also attended the meeting — Elder Dallin H. Oaks and Senator Harry Reid of Nevada. Along with President Obama, the majority of the attendees of the meeting were J.D.’s, although all three men are better known for their roles outside the traditional legal profession. With so many lawyers in the room, perhaps it was inevitable that legal issues came up in conversation. Senator Reid later indicated that he was “glad that President Obama and Elder Oaks had an opportunity to discuss their shared passion of the law.” I admit I would have liked to have listened in on the conversation between the state-supreme-court-justice-turned-Mormon-apostle and the law-professor-turned-leader-of-the-free-world.

As they have done with the past two American presidents, the Mormon Church leaders presented President Obama with his family history, including a large-scale family tree (pictured above).

New alcohol laws take effect in Utah

We would be remiss if we didn’t mention the new Utah state alcohol laws that took effect last week. While none of the blog’s current contributors live in Utah, it’s impossible to ignore the role that the Mormon Church has played in alcohol control policy in the state where a majority of the residents are at least nominally adherents to the faith. The new Utah laws abandon the 40-year-old requirement that bar patrons fill out an application, pay a fee and become a member of a private club. The private club rules were a quintessentially Utah oddity for many years, but they were most noticed during the 2002 Salt Lake Olympics.

I’ve never quite understood the rationale of the private club rule. By most accounts, the rule was not much of a barrier to drinking, and in some parts of the state (such as Park City) it wasn’t even enforced. So the private club rule doesn’t appear to have restricted alcohol consumption. It seems to have had more of a social stigma function, requiring drinkers to be “on a list.” In that respect, the updated law hasn’t changed much. The Associated Press reports:

The [Mormon] Church has always helped shape alcohol policy here, and the change to the law this year was no different. Only after consultation with church leaders and an agreement that DUI penalties would be stiffened, did lawmakers make progress on the changes.
As part of the agreement, Utah also became the only state in the country to require bars to scan the ID of anyone who appears to be 35 or younger to ensure their ID is valid. Bars store the information for a week so law enforcement can inspect it.
Anyone who has an ID that doesn’t properly scan is required to fill out a form logging their presence at the bar.

Utah alcohol laws still have quite a few quirks. That same AP article notes that flavored malt beverages may not be sold at grocery or convenience stores, the percentage of alcohol in beer is capped at 3.2%, happy hours are illegal, and cocktails must be mixed out of the sight of customers.

As a policy matter, I think the new law is at least a step in the right direction, particularly the harsher DUI penalties. I would rather see some more creative solutions, such as those that I discussed earlier this year involving alcohol tax equal to the average marginal social cost of each drink.

New Hampshire Governor John Lynch signs same-sex marriage bill

Last month we covered the debate in New Hampshire over Governor John Lynch’s proposed amendments to a same-sex marriage bill that would provide certain religious protections for clergy and religious organizations. The New Hampshire house refused to accept Governor Lynch’s proposed language and the bill had stalled. Today various media outlets are reporting that the bill has been signed into law, and that most of the religious protections survived committee review.

I think this is an encouraging first step in reconciling religious liberties and the seemingly inevitable expansion of same-sex marriage. As his signing statement indicated, Governor Lynch clearly recognized this tension and sought to address it in a way that had not been done in any other state so far. (This, by the way, is one of the reasons why such measures are best performed by the legislature rather than the judiciary.) Governor Lynch’s proposed language didn’t go far enough in my opinion because it fails to protect the religious liberties of individual that are not clergy or managed by a religious organization. But at least New Hampshire recognized those religious rights, which is more than can be said for Massachusetts or California.

Photo credit: marcn.

New Hampshire gay marriage bill stalled over religious exemption

I saw yesterday (via the Mirror of Justice) that the Democratically-controlled New Hampshire House of Representatives blocked passage of a bill that would have allowed same-sex marriages in the state. You may have seen news reports that New Hampshire Governor John Lynch promised to sign the bill if a provision was added to allow clergy to decline to perform such marriages. Here’s the significant portion of the added language:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

As Minnesota Law prof Dale Carpenter pointed out, the language is fairly broad but it could be broader. It doesn’t cover state employees, for example, or private individuals who are not actually managed or directed by a religious entity.  But it’s definitely the broadest protection included in same-sex marriage legislation so far, and it will likely set the pattern for states in the future. This is the first concrete attempt I have seen to reconcile the conflict between religious liberties and the gay rights movement, and though I oppose same-sex marriage, I found it quite hopeful. It even seemed to reinforce the argument of Dave Banack of Times & Seasons that the LDS Church should focus on defending religious liberties rather than opposing same-sex marriage.

But the New Hampshire House killed the bill. At first glance it appears that same-sex marriage proponents were willing to have the bill defeated before conceding any ground. This is not a productive approach, and it is precisely the type of behavior that has created the clash between religious groups and same-sex marriage supporters. As an opponent of same-sex marriage, perhaps I should be glad that the measure was defeated. But I’m really disappointed that the New Hampshire legislators were so unwilling to recognize appropriate accomodations to First Amendment religious rights.

For more information on the intersection of religious rights and gay marriage, see the Pew Forum’s Question & Answer session today with George Washingoton Law professors Chip Lupu and Robert Tuttle.

Photo credit: NASAVideographer.

Should Judge Jay Bybee take the blame for the CIA’s rough interrogation tactics?


Should Judge Jay Bybee be the fall guy for the CIA’s rough interrogation tactics of terror suspects? Yesterday, Time Magazine wrote an article describing Bybee as a “top Justice Department official who approved an array of so-called “enhanced interrogation techniques” against alleged al-Qaeda members that many observers call torture.” The article continues; “though Bybee wasn’t the only person responsible for crafting the Bush administration’s interrogation policy, unlike his erstwhile colleagues he continues to hold public office, sitting on the Ninth Circuit Court of Appeals. He now faces calls for impeachment from Sen. Patrick Leahy, former Obama aide John Podesta and the New York Times editorial board, among other corners. The Justice Department has distanced itself from much of Bybee’s work and is reportedly preparing a scathing internal report that could call for him and others to be reprimanded or even disbarred.”

DISBARRED? DISBARRED!? All these talking heads keep saying that Bybee has broken both International and U.S. laws but SHOW ME what laws he has broken. I’ve looked and I can’t find a single law of the United States that he broke. Each of the U.S. laws that I’ve read only proscribe penalties to the person who actually did the “torturing”. Let’s be honest the Bush administration was going to interrogate terror suspects anyway they wanted, regardless of what their lawyers told them. Additionally, are we really going to “reprimand” or “disbar” a United States Circuit Judge over the “standards” of an international treaty? Give me a break! Our country signs a treaty a day that we don’t abide by. Why start now? And with a Federal Judge?

The fact of the matter is, politics are more important to some of our leaders then keeping this country safe.

Bybee received his B.A., from Brigham Young University in 1977, graduating magna cum laude. He went on to receive his Juris Doctorate from BYU’s J. Reuben Clark School of Law three years later. He served his mission for the Church of Jesus Christ of Latter-day Saints in Chile from 1973- 1975.

Utah Senate Pres. threatens CAN-SPAM against Jack Thompson

Last month we posted about Utah Governor Jon Huntsman’s veto of an ineffectual bill that purported to prevent the sale of M-rated video games to minors. The driving force behind that bill was Jack Thompson, a now disbarred lawyer from Florida who is controversial for the tactics he uses in his campaign against violence and sex in video games. The Salt Lake Tribune is now reporting that Thompson is being threatened with legal action under the federal CAN-SPAM Act for unwanted emails sent to Utah State Senate President Michael Waddoups. Apparently Waddoups was on Thompson’s mailing list and asked to be removed, but Thompson refused. The Senate Site blog, which calls itself “The Unofficial Voice of the Utah Senate Majority,” provides some clarification with an email exchange between Thompson and Waddoups. Apparently Thompson sent an email out that highlighted certain images that were not particularly safe for work, which was the impetus for Waddoups’ removal request.

While this drama goes on, I think it’s important to note that you almost never see the CAN-SPAM Act enforced on a single spammer. The CAN-SPAM Act of 2003 governs commercial emails and prohibits false or misleading header information (To: and From: fields, etc.) and deceptive subject lines. There are also specific requirements that email advertisements be identified as such. Most relevant to this situation is the requirement that email recipients be given an opt-out method. Thompson apparently is refusing to let Waddoups opt out of the emails, thus violating that part of the Act.*

If you are a competent Internet user and have an email account, you have likely noticed that your junk mail folder regularly receives emails that violate these rules. This is due in large part to the fact that the CAN-SPAM Act provides no private cause of action against spammers. It can only be enforced by parties such as the Federal Trade Commission, the Department of Justice, or specific internet service providers. People like you and me can’t sue for the email spam we receive. I don’t know if this is a good thing or a bad thing, but that’s how the Act is written.

For the most part, only flagrant or notorious spammers are sued or prosecuted under the CAN-SPAM Act. However, a defiant and disreputable character like Jack Thompson going up against the head of a state senate seems like one of the few situations in which an individual case of spamming might be enforced, either through FTC fines or by criminal prosecution by the DoJ. However, the email must first be considered commercial in order to fall under the CAN-SPAM Act. I doubt CAN-SPAM applies to an email sent to a legislator advocating a particular issue or viewpoint, as this email seems to have done. We’ll wait and see what happens next.
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* The CAN-SPAM Act also has specific provisions applying to sexually explicit commercial emails, but I don’t think that applies here because accroding to The Senate Site blog, the communication at issue is probably not sexually explicit.

BYU Law prof Larry EchoHawk to head Bureau of Indian Affairs

President Barack Obama has nominated BYU Law professor Larry EchoHawk as the head of the Bureau of Indian Affairs, a sub-agency that is part of the Department of the Interior. Professor EchoHawk is a former Attorney General and State Representative for the State of  Idaho. EchoHawk is a member of the Pawnee Nation and has a long history of connections with BYU. He played varsity football for BYU in undergrad, has taught at the law school since 1994, and is currently serving as a BYU stake president. Congratulations to Professor EchoHawk. It seems that BYU’s loss is the Bureau’s gain.