LDS Church Buys Vacant KJZZ Building.

The LDS Church on Saturday confirmed it has purchased the KJZZ studio building west of the Salt Lake City International Airport. The church intends to use the property for church operations, “possibly as an audio visual studio or warehouse,”. This represents the third major real estate purchase by the Mormon Church in Salt Lake City, Utah in recent weeks. Salt Lake Tribune 

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Legal Briefs: Land Purchase, Harry Reid, Anti-Mormons, Missionary Killer

  • LDS Church acquires 13 acres of land in downtown Salt Lake City, Utah. Deseret News
  • Senator Harry Reid of Nevada is named 2009 Mormon of the Year. St. Louis Post (No, I’m sorry to report that this is not a joke). 
  • Anti-Mormon Vandals target a Sacramento, California area family. CBS
  • A Virginia Circuit Court judge denied James Boughton Jr’s appeal for a new trial. Boughton shot two Mormon missionaries in January 2006. Elder Morgan Young was killed and though his companion Elder Joshua Heidbrink was also shot, he did not die. Boughton sought a new trial based on alleged juror misconduct. Virginia Pilot 

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.

JRCLS General Conference Reception

If you happen to live in Utah or will be traveling there for General Conference, you should consider attending the BYU Law School reception for alumni and J. Reuben Clark Law Society members. It is held at the Joseph Smith Memorial Building in Salt Lake City. I’ve always thought it would be nice to attend, but it’s probably not worth the 3,000-mile drive just to have lunch. If you are interested, today is the last day for registration. Click here for details.

Tithing and ill-gotten gains

Val Southwick, the CEO of VesCor who is in prison for swindling investors out of more than $180 million. The scheme took in many people  in Utah, and many of the victims and at least some of the perpetrators are members of the Mormon Church. Last week the Salt Lake Tribune reported that Southwick had paid over $200,000 to the LDS Church in tithing, and that the LDS Church was now returning that money to be part of the restitution to the victims.

U.S. District Court filings show Val Southwick paid The Church of Jesus Christ of Latter-day Saints $202,761.74 between 2001 and 2006.

In 2008, the LDS Church Corporation of the Presidency agreed to return the money as part of a Securities and Exchange Commission enforcement action.

I don’t imagine $200,000 will go very far when the total amount stolen is more than $180,000 million, but it’s better than nothing. I note that $200,000 in 10% tithing would indicate an income of about $2 million over the course of seven years. It seems very unlikely that Southwick only kept $2 million of the $180 million for himself, so it sounds like he was lying to his church as well as his investors. What a guy.

The Salt Lake Tribune article noted that LDS Church spokesperson Scott Trotter says the LDS Church has a policy of not profiting from alleged ill-gotten gains. I find it interesting that the Church rejects donations derived from allegedly ill-gotten gains. To some degree this policy delegates authority to law enforcement officers and prosecutors. In this case, the initial determination of wrong-doing was made by a prosecutor or SEC officer, not the LDS Church. But the policy seems like a prudent one to me, both in terms of practicality and perception.

Looking to Catholicism to predict the future of Mormon church courts

Last week here was some speculation that former congressman Joseph Kennedy II might run for the Senate seat vacated by the death of his uncle, Ted Kennedy.  Mitt Romney’s name was also tossed about, but both he and Joe Kennedy have stated they would not run for the seat.  I looked up some information on Joe Kennedy and got sidetracked by an interesting quasi-legal proceeding in his past. Joe Kennedy asked the Boston Archdiocese to annul his first marriage with Sheila Brewster Rauch, but Rauch  refused to agree to the annulment. The Boston Archdiocese eventually granted the annulment over Rauch’s objections, and she later appealed to the Vatican. The annulment was overturned in 2005 by the Roman Rota, the highest appellate tribunal of the Roman Catholic Church.

I was not familiar with the hierarchy of Roman Catholic tribunals, so this process was fascinating to me. Apparently there is a rehearing mechanism that is part of the Roman Rota, in which another panel of the Rota could hear the matter again (somewhat like an en banc rehearing).  I thought it was interesting that Rauch, who is not Catholic, still had “standing,” for lack of a better word, to appeal the Boston Archdiocese’s decision.
The Mormon Church has its own system of church courts, mostly focused on the ward and stake level. My understanding is that an “appeal” from a stake disciplinary hearing goes straight to the First Presidency. I also believe that, in some situations, such as a temple divorce, a determination is made in conjunction with the First Presidency and local leaders.  (Commenters with better information are welcome to clarify or correct me as to these policies.)

The Roman Catholic Church is a much larger worldwide denomination than the LDS Church. But despite the disparity in size, the two churches have much in common because they are both centrally operated. As the Mormon Church deals with the challenges of operating in many countries, I think it would be instructive to look to Catholic procedures to see how it handles similar challenges. With a membership of over 13 million, a surprisingly large number decisions in the Mormon Church are still made at the level of the First Presidency. However, as membership and population bases spread, I can imagine a time in which the First Presidency assigns some of these proceedings to a separate body. For example, a panel of members of the Quorum of the Twelve or the Presidency of the Seventy could be assigned to examine some appeals, much as the Roman Rota would hear an appeal from an archdiocese.

Obviously, this is pure speculation on my part. But in our lifetimes we have seen the Quorums of the Seventy expanded significantly, and the general trend in the LDS Church is to designate more autonomy away from the First Presidency and Quorum of the Twelve to the Seventies and Area Authorities. So some modifications to church court appellate procedures are certainly possible.

Image credit: Cris Pierry.

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.

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                                                                                                                              

Should Mass. Mormon leaders use the Dover Amendment?

Much of the Bloggernacle took note when a venerable LDS chapel in Cambridge, Massachusetts caught fire and burned in May of this year. The unavailability of that chapel exacerbated a crowding problem in the Boston Stake. In another Boston suburb, Brookline, the Mormon Church has been attempting to build a new chapel for the past two years. The Boston Stake purchased the land in 2007 but experienced severe criticism from neighbors, even after agreeing to several design changes. Eventually the Brookline Preservation Commission issued an 18-month stay on the project to protect a historic house on the property.

That stay expires in November, and Mormon leaders in the Boston area now face a choice: do they continue to seek community approval and cooperation with the building project, or do they go forward in spite of the opposition? The Mormon Church’s common practice has been to work with neighbors, and that is clearly a good policy for fostering goodwill and community involvement. But the LDS Church hasn’t always been able to reach an agreement with neighbors. The best example of such disagreements was the contentious building of the LDS Boston Temple. Neighbors filed a lawsuit against the LDS Church and the temple was dedicated without a steeple. Eventually the Massachusetts Supreme Court reversed a lower court ruling and allowed the steeple to be constructed, nearly a year after the temple was dedicated.

The Boston Temple must be on the minds of Mormon leaders as they prepare to make their case to the community a second time. The other thing on their minds is likely a law commonly referred to as the “Dover Amendment” (Massachusetts General Law 40A § 3).  Among other things, the Dover Amendment exempts religious organizations from certain zoning restrictions. If neighbors to the proposed chapel continue to fight the project, Mormon leaders could choose to ignore the protests and build the way they want to. Another Brookline congregation, the Korean Church of Boston, proved this point last year when they built a towering gray monolith addition to a traditional old church. Planning Commission officials saw the designs and didn’t like them, but since the Korean Church was exempted from the zoning restrictions they could not oppose the project.

Neighborhood criticism of the proposed Mormon chapel hasn’t abated since 2007. Gill Fishman, president of the Fisher Hill Neighborhood Association, insists that the design is ugly and that the chapel is too big. Even still, I consider it unlikely at this point that Boston Stake leaders will avail themselves of the Dover Amendment. In addition to the cost in goodwill to the community, it could result in a lawsuit similar to the one that delayed the Boston Temple steeple, further delaying the construction. But Brookline neighbors may have to acknowledge that when push comes to shove, they don’t have a choice.
Photo credit: bunkosquad.