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.

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.

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                                                                                                                              

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.

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.

Holy Spirit lawsuits

I live in the Southeastern United States, where Mormons are a small minority compared to other evangelical denominations. One comment I have heard from people who visited my church for the first time is how different the services are from some other churches. Many of these first-time visitors to LDS church meetings are struck by the absence of church bands, congregational utterances (“Amen!“), or public displays of spiritual experiences. The Mormon concept of “Holy Spirit” is a much more subdued affair than in some evangelical denominations, where fainting, convulsions, and speaking in tongues are not uncommon.

It turns out that the Mormon approach has at least one advantage: less injuries. One of my favorite legal blogs, Kevin Underhill’s excellent Lowering the Bar, has recently reported on a couple personal injury suits arising from incidents in churches where a congregant was “taken by the Holy Spirit” and fell backwards. Apparently this is a common enough occurrence that the congregations have “catchers” ready to catch the falling people, but they don’t always work. In one case the catchers dropped the falling man, and in another case, the falling person injured one of the catchers. Yikes! Who knew going to church could be so dangerous? Fortunately, most Mormons are only in danger of falling asleep during a long-winded talk on High Council Sunday.

Photo credit: Riveroyster.

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.

Church liability for acts of individual members

Last week a woman in Florida filed a lawsuit against the Church of Scientology, alleging that the church was liable for the death of her 20-year-old son. The lawsuit alleged that the young man committed suicide after two Scientologists convinced his father, also a Scientologist, to take away the son’s anti-depressants. It now appears very unlikely that the case will go to trial; police reports released this week apparently refute most or all of those claims. But it caught my attention because similar liability claims have been made against the LDS Church, alleging that the Church was liable for the wrongful acts of its individual members.

Since most churches are operated by professional clergy, most lawsuits against denominations are based on the actions of ordained clergy. The Mormon Church differs in that it employs virtually no clergy on the congregational level, relying instead on a “lay clergy.” So while some Mormon leaders (such as bishops or stake presidents) could clearly be seen as agents of the Church, most of the congregation are not church agents, despite the various tasks or responsibilities to which they may have been assigned.

Like the recent Scientology lawsuit, there have been several lawsuits against the LDS Church in the past 20 years that claimed the Church was liable for the actions of its members. The most serious of these cases alleged sexual abuse by members of Mormon congregations. Some of these lawsuits also included liability incurred by church agents (i.e., bishops), but they have also allege that the LDS Church was liable for the abuse committed by one of its members.

As a matter of policy, I think no religious group should be liable for the wrongful acts of its members unless those individuals could be said to be agents of the denomination. But some courts have held just that. In a highly-publicized 2005 lawsuit in Washington State, the Mormon Church was found liable for the actions of a man who sexually abused his two step-daughters. But on appeal before the Washington Court of Appeals, that portion of the jury verdict was reversed and the Church was held not to be financially responsible for the step-father’s liability.

Court still seem to be struggling with the difference between clergy members and parishioners in the Mormon Church. Part of this may be due to the practice of a lay clergy. A bishop may clearly be an agent of the Church, but what about and Elders’ Quorum president? A home teacher? A Sunday School teacher? I also think this confusion is due in part to an unfamiliarity with the structure of Mormon congregations. It would be hard to imagine a similar ruling against a Catholic Diocese or a Protestant congregation because more judges and juries are familiar with the structure of those organizations.

University of Phoenix Discriminated Against Non-Mormons

A Federal District Court judge ordered University of Phoenix to pay nearly $1.9 million for practicing religious discrimination against non-Mormon employees who worked as enrollment counselors. The U.S. Equal Employment Opportunity Commission charged in a class action suit that the online university and its parent Apollo Group provided the best leads to its Mormon recruiters, promoted less qualified Mormon workers over non-Mormon peers, and disciplined non-Mormons for conduct they condoned with Mormon employees.

Besides securing the nearly $2 million monetary compensation for 52 individuals, the consent decree requires that University of Phoenix immediately halt all discriminatory actions, train all managers and employees on the issue of religious discrimination and hire a diversity officer to monitor compliance.

“We are pleased that University of Phoenix is going to stop condoning such favoritism toward Mormon employees and the resultant discrimination against non-Mormon employees,” said Mary Jo O’Neill, Phoenix regional attorney for the federal employment watchdog organization. “It is the EEOC’s belief that, for many years, the University of Phoenix condoned an environment in which Mormon managers felt free to engage in favoritism toward their Mormon employees, and did so by providing the Mormon employees things such as strong leads on potential students. Given that evaluations are based largely on recruitment numbers, this disproportionate assignment of leads affected a whole host of matters for employees, including compensation, access to tuition waivers, and ability to be promoted.”

The University of Phoenix confirmed the consent decree including the payout, training initiatives and oversight but said it does not admit wrongdoing. They issued the following statement: “University of Phoenix is pleased to have resolved this matter. We are dedicated to providing a work environment in which our employees are treated fairly and with respect, and are recognized and rewarded based on their accomplishments. University of Phoenix is committed to providing equal opportunity in all aspects of employment and does not tolerate discrimination or harassment of any kind.”

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.