The LDS Church and alcohol control policy

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

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

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

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

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

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

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

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

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

Photo credit: Ben McLeod.

2008 a year of headlines for the Mormon Church

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

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

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

Denial of Burris in the Senate recalls the Reed Smoot Hearings

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

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

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

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

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

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

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

Arkansas Court of Appeal Rules That “Mormons are Not Protestant”

The Arkansas Court of Appeals recently handed down an unusual ruling in which a man was held in contempt for involving his children in the LDS Church. Actually, it’s not as dramatic as it sounds. When Joel and Lisa Rownak divorced in 2005 they agreed that their two children would be raised “in the Protestant faith.” Since this agreement was entered as part of the divorce decree, it was enforceable by the court. Subsequent to their divorce, Joel Rownak converted to Mormonism and involved his two sons in his new faith, including baptizing one of the boys. Rownak made several free speech arguments, but the Arkansas court still found in contempt of the decree. The court relied heavily on the fact that Rownak himself had asked for the language to be placed in the divorce decree.The interesting part of this case, as it relates to the Mormon Church, is the court’s discussion of whether the Church of Jesus Christ of Latter-day Saints was a Protestant church.

The court noted: Based upon testimony by appellant’s wife, a statement by the president of LDS that was publicized on the church’s website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons.Ark. App. CA08-193 p. 4. The question of whether Mormons are Protestants is mildly interesting, but it’s fairly clear cut. The Arkansas court didn’t seem to have much trouble coming to its conclusion. It would be more interesting if the divorce decree had required the children to be brought up “in the Christian faith.” Then you would have a U.S. court attempting to determine an issue about which there is significant disagreement among various denominations. What sources would a court consult in determining whether Mormonism is part of Christianity? Would a court consult the LDS.org website, like the Arkansas court did on the Protestant issue? Or would the court instead rely on other religious authority outside of the LDS Church? And is even proper for a court to determine such controversial issues?As much as I’d like to see the outcome of such a case, it probably isn’t the sort of issue that a court should resolve. In the Arkansas case there really wasn’t much of a dispute over whether Mormonism was Protestantism. But it still raises some significant constitutional questions.

On this topic UCLA Law Professor Eugene Volokh opined: I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can’t make theological decisions, such as which claimant’s views are closer to orthodox (with a small “o”) Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes “members of a religion,” and it privileges majority denominations within a religious group over minority denominations). And courts usually can’t avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word’s intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

2 More Men Join Sex-Abuse Case Against Mormon Church

Two Portland men filed an $8.5 million lawsuit today against the Mormon church and the Boy Scouts, bringing to eight the total number of former Boy Scouts alleging sexual abuse by Timur Van Dykes, who was a church and scout leader in the 1980s and early 90s.

The lawsuit alleges that Timur Van Dykes molested Boy Scouts in Troop 719, which was supervised by the Church of Jesus Christ of Latter-day Saints. Dykes, a registered sex offender who now lives in Southwest Portland, has been convicted of at least 26 sex crimes since 1983. Together, the pending abuse cases filed in Multnomah County Court against the scouts and the church seek $33.5 million. Six of the alleged victims agreed earlier this month to enter talks to settle their lawsuits but failed to reach a resolution.