The Upcoming Term and Proposition 8

As a student currently taking a constitutional law class, one of my first thoughts this semester was, “Wow. My Con Law book is enormous.” In fact, I recently heard an undergrad say to his friend, “Is that guy reading the dictionary?” as they walked past me while I studied. Fortunately for me, I find most of my Con Law cases interesting. Unfortunately for future law students, that textbook is about to get bigger.

The new SCOTUS term is set to start this next week (October 3rd), and it has the potential to be one of the most influential terms in recent memory. The Court already has cases on its docket regarding ministerial exceptions and searches and seizures. However, there is a good chance the Court will also address such hot-button issues as affirmative action, immigration (Arizona’s SB 1070 case), “Obamacare,” California’s Prop 8, and the Defense of Marriage Act. Although all these topics can spark vigorous debate, the topic LDS attorneys and law students are most likely to have strong opinions about is same-sex marriage.

Although there is potential for Prop 8 (Perry v. Schwarzenegger) to be heard by the US Supreme Court this term, in my opinion it will not happen. In January the 9th Circuit Court certified a question to the California Supreme Court regarding the defendants’ standing. The California Supreme Court heard oral argument on the question earlier this month, and their decision is still pending. Simply put, this gives the Prop 8 case two possible paths: (1) the CA Supreme Court can decide there is no standing, potentially resulting in a dismissal, and (2) the CA Supreme Court can decide there is standing, allowing the 9th Circuit to make a decision on the appeal. If option 2 occurs, I think we can all agree that no matter what they decide, the case will be appealed to the US Supreme Court. However, the chances of the Supreme Court granting certiorari before this next term ends are relatively slim. One thing is certain, though: this could be a blockbuster term for the United States Supreme Court, one that will force future Con Law students to spend even more time hitting the books.

TIME Magazine on the Mormon Church

Next week’s issue of TIME Magazine has a pretty lengthy piece on the LDS Church.  Entitled “The Storm Over the Mormons,” the article discusses some of the fallout and criticism surrounding the California Proposition 8 campaign, as well as the mission and structure of the Mormon Church.  The main focus of the article isn’t legal, but it does touch on some topics such as religious political activism and the Mormon Church’s tax-exempt status.  The article cites at length the experience of Jay Pimentel, a lawyer and bishop in Almeda, California.  Nothing in the article is particularly earth-shaking, but it’s a fairly well-written and interesting piece with no major factual innaccuracies, which I can appreciate. The article is available here.

Legal Briefs: Abraham Lincoln, Joseph Smith, Mitt Romney, Michael Steele

  • Backers of Gay Marriage Trumpet the Mormon Church’s work against it. Washington Post
  • LDS official response to California Supreme Court’s Prop 8 holding. The Church issued the following statement following the California Supreme Court Decision on Proposition 8:

    Today’s decision by the California Supreme Court is welcome. The issue the court decided was whether California citizens validly exercised their right to amend their own constitution to define marriage as between a man and a woman. The court has overwhelmingly affirmed their action.

    The Church of Jesus Christ of Latter-day Saints recognizes the deeply held feelings on both sides, but strongly affirms its belief that marriage should be between a man and a woman. The bedrock institution of marriage between a man and a woman has profound implications for our society. These implications range from what our children are taught in schools to individual and collective freedom of religious expression and practice.

    Accordingly, the Church stands firmly for what it believes is right for the health and well-being of society as a whole. In doing so, it once again affirms that all of us are children of God, and all deserve to be treated with respect. The Church believes that serious discussion of these issues is not helped when extreme elements on both sides of the debate demonize the other.

  • Readers defend Mitt Romney and Michael Steele over ‘Mormon comments’ US News and World Report

The California Supreme Court Upholds Prop. 8


The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.

Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election. The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May. Only Justice Carlos R. Moreno, the court’s sole Democrat, wanted Proposition 8 struck down as an illegal constitutional revision.

Mormons, Prop 8, and 501(c)(3)

Associate law professor at Florida State University’s School of Law who is currently a visiting professor at Georgetown University’s Law Center; Brian Galle, wrote an interesting essay on the Mormon Church’s involvement in Prop 8 and whether it should affect the Church’s 501(c)(3) tax exempt status. Galle wrote the article for Northwestern University’s law review.

After Proposition 8 was passed, people from all over the country voiced their opinion as to whether or not the LDS Church crossed the line for its political involvement and if that involvement should affect its tax status. Among the many articles that I’d read on the subject, none went into a detailed legal analysis of the situation, they were more just people’s opinion on the situation. However, Galle did a good job of analyzing the pertinent law’s and how they applied to the LDS Church’s involvement in Prop 8.

I do however disagree with Galle’s conclusion that if the Church were taken to court the outcome of the case would be uncertain. Galle concluded that “Under existing precedent, the outcome of any challenge to the LDS Church’s intervention in Proposition 8 is uncertain. Most caselaw has looked to the cost, and perhaps time and effort, devoted to lobbying, and compared that to the organization’s overall size. By that standard, the Church’s vast size likely shields it from any serious threat of revocation. But that method has serious problems. It fails to consider the true economic value of political endorsements by influential organizations with extensive and time-tested lists of phone numbers and e-mail addresses. And more importantly, it neglects the fact that under either of the most persuasive explanations for the very existence of the lobbying limits, it makes no sense to permit multi-million dollar expenditures simply because a charity itself is large.

Galle continues “Even under my proposed methodology, the outcome of any challenge to the Church’s exemption is hard to predict. We do not know how the market would value the use of the Church’s mailing lists nor do we know the value of the staff time and other costs the Church invested. Perhaps these sums are modest, even in absolute terms. My point here is only that if these figures prove to be large—several million dollars, say—then there ought to be a serious question whether revocation is appropriate. The fact that several million dollars is a tiny fraction of the Church’s budget should not by itself render the expenditure permissible”.

I disagree with Galle’s conclusion that a legal challenge to the LDS Church’s involvement in Under any circumstance the LDS Church should not lose it’s tax exempt status for its participation in Prop 8. The Mormon Church has been around since 1830, and a relatively short push for Proposition 8 cannot be viewed as a move a Church into the realm of a political organization. As Galle points out the LDS Church’s involvement was really quite minimal; it sent out a letter, asked members to make phone calls, donate time, money, and put on a video conference asking members to support traditional families. The money paid to support Prop 8 was paid by the members of the Church not the Church itself. Why should Mormons not be able to support political movements they believe in?

If the Mormon Church should lose its tax exempt status then so should virtually every other church in the country because almost all churches at one point or another voice their opinion on political matters and ask their members to become involved. Compare the LDS Church’s involvement in Proposition 8 to constant political chatter of people like President Obama’s Pastor Jeremiah Wright. Under current law, the Mormon Church’s tax exempt status cannot seriously be questioned.

Uproar in Connecticut

The Mirror of Justice blog reports that the last week’s controversial Connecticut legislation aimed at the Catholic Church has been tabled. According to Archbishop Henry Mansell of Hartford, the bill would “force a radical reorganization of the legal, financial, and administrative structure of [Catholic] parishes.” In case you think that wasn’t descriptive enough, PrawfsBlawg’s Rick Hills called the measure “The Connecticut Legislature’s preposterously unconstitutional attack on Catholicism.” Sensational enough for you now?

Professor Hills points out that, among other things, the proposed Connecticut measure is patently unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. (For a brief but excellent analysis of all the issues, see the open letter written by several prominent law professors to the Connecticut legislature.) For all the ugliness directed towards Mormons after Proposition 8 in California, there hasn’t been such an overt legislative assault on the LDS Church in any jurisdiction.

I certainly don’t see this as a Catholic or Mormon issue. Even with in a divisive political climate, I am utterly surprised that any legislator in the nation would sign his or her name to such a bill. In a Q&A on the National Review Online, Katheryn Jean Lopez asked Brian Brown (executive director of the National Organization for Marriage) “Why should anyone who’s not Catholic in Connecticut or Mormon in California care?” He responded:

All Americans, whatever their political leanings, should care when politicians propose to take out a specific religious group because partisans in one party don’t like its moral stands on important public issues.

Brown goes on to call for “a response that makes these partisans regret it.” I don’t support Brown’s vindictive approach, but I certainly agree that all Americans should be concerned that such a provision was ever contemplated.

Photo credit: Brent Danley

Same-sex Marriage ban defeated in Wyoming legislature

The Casper Star-Tribune is reporting this week that a proposed amendment to the Wyoming state constitution that would define marriage between one man and one woman was defeated in the state legislature this week. The defeat was due in part to the opposition by two LDS legislators, State Senator Katheryn Sessions and State Representative Joe Barbuto . I think the peculiar circumstances in Wyoming present an interesting fact pattern. First of all, Wyoming is no Utah. It ranks in the bottom half of the U.S. in terms of religiosity and Mormons are clearly a minority of the population. However, unlike other regions of the country, there are no dominant religious denominations. As my friend from Wyoming once said, “If you’re driving down the road in Wyoming and you see a church, it’s probably a Mormon church.” So while Mormons aren’t a large block of the population, they are essentially the only denomination with any significant presence in the state.

It seems that the stereotypical Western you-mind-your-business-and-I’ll-mind-mine approach has some truth in Wyoming. So it would be easy to interpret the same-sex marriage vote as one falling down religious lines. And yet the bill’s sponsor isn’t a Mormon and at least some of the Mormon legislators voted against the measure. It seems to me that this isn’t a simple matter of religious persuasion, but the normal complicated political process in action.

Ever since last year’s Proposition 8 campaign most media reports have depicted the LDS Church as a monolithic group that universally supported the referendum. And while many members of the LDS Church did just that, the Wyoming vote shows that there is clearly room for differing opinions. I’ll follow this post up soon with my thoughts on the use of state constitutional amendments and the future of the Defense of Marriage Act (DOMA).