Legal Briefs: Phoenix Temple, PA Church, Woman Arrested in Church

  • Residents of a Phoenix, Arizona neighborhood will have a meeting to discuss the height of the proposed Mormon Temple. Arizona Republic
  • LDS Church appears clear of legal hurdles to construct a new church in East Hempfield Township. Residents’ appeal was denied by county judge. Lancaster Online
  • Naked woman arrested inside an LDS meetinghouse in West Jordan, Utah. Deseret News

Legal Briefs: Mormon uprising, Philadelphia Mormon Temple, Rex Rammell

  • Fraud suspect in Mississippi claims he can stop an Obama overthrow plot and Mormon uprising but only if he’s freed. Fox8.com 

    • Idaho gubernatorial candidate Rex Rammell’s (Mormon) call for a private meeting with Mormon elders has drawn national attention. Standard Journal 

    Legal Brief: LDS Church Nondiscrimination, Phoenix Temple Zoning Approved

    • The LDS Church declares its support of nondiscrimination regulations that would extend protection in matters of housing and employment to gays in Salt Lake City. LDS Newsroom
    • Statement from LDS church regarding Salt Lake City’s non-discrimination ordinance. Deseret News
    • Phoenix planning commission approves zoning changes for Mormon temple. Fox 10 AZ


    • Neighbor vs. Neighbor over Mormon Temple in Phoenix. Fox 10 AZ

    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.

    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.

    Would Be Temple Shooter Pleads Guilty To Weapons Charges

    Benjamin Speakman of South Jordan, Utah pleaded guilty to weapons charges for possession of an unregistered sawed-off shotgun. In his plea, Speakman admitted cutting down the barrel of a New England 12-guage shotgun that is not registered to him. He has agreed to give up that firearm, as well as a 9mm Glock handgun and an AK-47.

    The 27-year-old is scheduled to be sentenced on June 22 at U.S. District Judge Dale Kimball. The offense carries a maximum sentence of 10 years in prison. Federal authorities say Speakman went to Valley Mental Health in Midvale, Utah on Feb. 2 and told employees he had a pistol and a shotgun and was planning to kill himself and others. Speakman allegedly told officers he planned to shoot anyone at the Jordan River Temple of The Church of Jesus Christ of Latter-day Saints.

    Man Arrested in a Plot to Storm LDS Temple and Kill People

    Federal authorities have arrested a man they allege was planning to storm the LDS Church’s Jordan River Temple and start shooting people.

    Benjamin Speakman, 27, was charged with a single count of possession of an unregistered sawed-off shotgun. In a complaint filed in U.S. District Court late Tuesday and obtained by the Deseret News, Midvale police were called to Valley Mental Health’s facility on Feb. 2 and told by an employee that Speakman had showed up and told them “he was in possession of a pistol and a shotgun and was planning to kill himself and others.”

    Gregory Hopkins, an agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, wrote in a probable cause affidavit that officers spoke to Speakman, who gave them the keys to his pickup. Officers found a handgun and two loaded magazines in the center console and the sawed-off shotgun behind the driver’s seat.

    “Benjamin Speakman told the officer he thought about shooting his wife and mother-in-law,” Hopkins wrote. “Benjamin Speakman told the officer he was planning to go into an LDS temple and start shooting people in the temple with his AK-47 and then shoot himself with the shotgun.”

    Midvale police called Speakman’s mother-in-law, who said she had found a shotgun and an AK-47 in their home. Inside a gym bag, ATF agents say they found the AK-47, loaded magazines, knives and a carrier to hold the magazines.

    “Benjamin Speakman stated he had planned on killing his wife and then killing his mother-in-law at their residence. He was then going to go to the Jordan Temple and fight his way into the temple to the celestial room where he planned to kill himself with the shotgun,” Hopkins wrote. “Benjamin Speakman was asked if he was planning on shooting anyone at the temple and he said yes.”

    Speakman was originally held under a medical watch at a local hospital, where charging documents said he was undergoing an evaluation. During an appearance in U.S. District Court on Wednesday, he spoke softly with U.S. Magistrate Judge David Nuffer, who appointed him a defense attorney.

    “Your honor, we anticipate a grand jury indictment next Wednesday,” assistant U.S. attorney Carol Dain told the judge.

    Speakman’s attorney sought his medical records pending an upcoming arraignment on Feb. 20. Nuffer ordered Speakman held in U.S. Marshal’s custody until then. He is being held in the Davis County Jail without bail.

    Why the Supreme Court got it wrong in Corp. of Presiding Bishop v. Amos

    Over twenty years ago, the LDS Church played a small role in determining how the Establishment Clause meshed with Title VII of the Civil Rights Act of 1964. The case is Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, and it used to appear in a lot of constitutional law texts. I find the case interesting for a couple reasons: first, it’s amusing when sources such as Bruce R. McConkie’s Mormon Doctrine or the Book of Abraham are cited in a Supreme Court brief. Second, and more importantly, I think the outcome of the case was wrong and that the Mormon Church should have lost.

    The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.

    Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs’ terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.

    This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

    The terminated employees argued that §702 violated the First Amendment’s non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.

    The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O’Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:

    • The statute must have a secular purpose.
    • If it has a secular purpose, the statute’s principle or primary effect must be one that neither inhibits nor promotes religion.
    • Lastly, the statute must not foster an “excessive government entanglement with religion.”

    It seems clear that Title VII had a secular purpose (to prevent employment discrimination), and the statute didn’t entangle the government with religion. The real issue was whether the primary effect of §702 was to promote religion.

    The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration,” the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.

    By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.

    In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:

    A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.

    As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn’t seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn’t hold an LDS temple recommend would result in negligible interference with religion, if any. I can’t think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn’t support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court’s ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn’t inhibit the free exercise of religion, this ruling seems indefensible.

    Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.

    The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:

    (1) the manufacturing of garments prior to 1960 and any subsequent changes;
    (2) the distribution of garments prior to 1960 and any subsequent changes;
    (3) the tax exempt status of Beehive;
    (4) the past and current employees who were or are non-members of the Mormon Church;
    (5) Beehive’s contracts, both past and current, with private commercial enterprises for the production of garments; and
    (6) current hiring practices of the defendants’ garment and temple clothing manufacturing plants in Mexico and England.

    I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process “before the garments were marked with certain religiously significant symbols,” which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.

    The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive’s activities were religious, if only for the aspect of temple clothing production, but it’s a close call. We’ll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson’s claims were granted and appealed, but given the Court’s (in my opinion) faulty logic in Amos, perhaps it was better left undecided.