Presidential Primaries and the Religious Test Clause

Considering the fact that there are two members of the LDS church running for President, it seemed inevitable that the “Mormon issue” would rise to the surface again. Mitt Romney attempted to confront the criticism regarding his faith in the 2008 election, but it didn’t seem to quell the unwarranted fears of those that don’t understand LDS doctrine. Around the same time Mitt Romney confronted the religion issues facing his candidacy, Barack Obama was forced to fend off allegations that he was not a Christian and was, in fact, Muslim. Personally, I was shocked at how serious these religious issues were at the time. In this country of religious liberty I assumed that, as a society, our level of religious tolerance was higher than it proved to be. Last week, those ghosts of 2008 seemed to emerge all over again.

Article VI paragraph 3 of the United States Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This Religious Test Clause clarifies that United States officials, including the President, are not required to accept a particular religion or faith in order to obtain their office. Certainly, when individual Americans voice a religious preference for candidates of public office they do not violate this clause; however, acting on such a preference violates its spirit. No candidate for the presidency of the United States should be excluded from consideration simply because they are Christian or not.

One thing I noticed this past week is a relatively high level of support for the church in the face of bigoted attacks. This support, coming from the general public and the media alike, seems to be greater than it was 3 to 4 years ago. It is likely that the church and its members will continue to be under the microscope in the near future, but I have faith that the American people in general will abide by the spirit of the Religious Test Clause and choose our next President according to the vital issues of our time and not religious misunderstandings.

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.

Legal Briefs: No Establishment Clause Violation in San Francisco’s Condemning the Catholic Church’s Refusal To Help With Adoptions by Same-Sex Couples

Arizona Judge Prohibits Mormonism


Is it proper for a judge to prohibit a father from taking his children to the Mormon Church? I found myself asking this question after I read an article written by Sarah Fenske of the Phoenix New Times.

Fenske gives some background on the case. “Two years ago, Maricopa County Superior Court Judge Robert Budoff decreed that Richard Franco could not take his children to a Mormon church.”

“Never mind that Franco had been a Mormon his whole life. Or that on weekends when he had custody of his 14-year-old son and 10-year-old daughter, the extended Franco clan attended Sunday services together. Nope, Judge budoff ordered in writing that the Franco kids’ ‘only religious training shall be in the Catholic faith and that they not be taken to an LDs church or LDS church training.”

Judge “Budoff’s decision was upheld by the appellate court in December. More recently, this spring, the Arizona Supreme Court took a pass, refusing to give Franco so much as a hearing.”

Fenske continues “reading the court file, it’s clear that Judge Budoff found Franco abrasive, arrogant, and annoying. But Budoff never found Franco to be an unfit parent. The children’s parenting coordinator, in fact, described the kids as ‘thriving, intelligent, and articulate’ and said that they ‘remain bonded to both their parents,’ despite a difficult divorce.”

Mike McCormack, executive director of the Washington, D.C.-based American Coalition for Fathers and Children offered that “without a finding that he (Franco) was unfit, he was informed—make that, flat-out told—‘You can’t expose these children to your religious beliefs. That’s over the top. Do we want that micromanagement from our judiciary? From our perspective, this was a real over-reach. This is an area where judges are getting ahead of themselves, to say that children will or will not be raised a particular way…The religious training question should be left in the hands of the parents.”

Fenske raises a valid question: (religious) “plurality can make things rough once the kids reach school age. But it can also be awesome. How to better learn tolerance than to have relatives with whom you disagree? How better to sort out how you really feel about God than understanding that good people see Him in different ways?” I agree with Fenske that some of the best learning experiences I’ve had in life have come through sharing ideas with people who have different beliefs then I have. Also, growing up in Maricopa County these children are going to be exposed to Mormonism whether it’s through their father, class-mates, or friends.

Below I highlight the pertinent part of Judge Budoff’s ruling. (Read the Entire Ruling Here)

2. The Decree provided that the parties would share joint custody of the children and contained a parenting time schedule which provided that Mother would be the primary residential parent and that Father would have regularly scheduled parenting time with the children including alternating weekends.

7. Extensive testimony was presented at the September 6, 2007, hearing from the parties and others relative to the parties’ communication and cooperation with each other, the circumstances surrounding the incidences of April 13, May 27 and July 11, 2007, and the matter of the children’s religious upbringing, and from the testimony presented the following findings are made:

a. Father has been aggressive, abusive and intimidating to Mother in phone conversations, e-mails and in conference with the Parenting Coordinator.

b. Father has been rude and intimidating to Daughter’s dance director and teacher.

c. Father is controlling and dictatorial with Mother over parenting schedule issues as he does not discuss issues with her and merely dictates to her as to how issues should be resolved immediately after she refuses to accede to his wishes.

g. Father has failed to return the children on time from his parenting time periods. The Court considers this behavior to be an example of passive-aggressive behavior towards Mother which adds to the parties’ inability to trust each other and to work together with regard to co-parenting.

h. Notwithstanding that the Decree provides that the children would be raised in the Catholic faith and only attend the Mormon church if they desired to do so, it is clear that Father has intimidated and coerced the children to attend Mormon church services when they are in his care although Father has agreed that the children be raised in the Catholic religion and the children appear to be committed to this religion, Father apparently believes that regardless of the children’s wishes he should be able to take the children to his church and expose them to his religion when they are in his care. Parenting Coordinator, Dr. Waldman, believes that this is not generally in the children’s best interest. Waldman opined that the children should not be forced to choose between religions and must be directed towards one, and only one religion, during their childhood.

k. The children’s Best Interest Attorney reports that the children have a good relationship with and enjoy their time with both parents except for those times when Father forces them to go to the Mormon church.

Based upon the foregoing and having considered the relevant factors of A.R.S. 25-403 and 25-403.01, the Court finds that continuation of joint legal custody for the parents is not in the children’s best interest.

IT IS FURTHER ORDERED awarding Mother sole legal custody of the children with full final decision-making authority relative to all educational, medical and religious issues.

(the Mother) is most supportive of the children’s Catholic upbringing to which the parties previously agreed and which they affirmed in open Court

IT IS FURTHER ORDERED in accordance with the recommendations of Parenting Coordinator, Dr. Larry Waldman, and to avoid further confusion and conflict in the children’s lives, that their only religious training shall be in the Catholic faith and that they not be taken to an LDS church or LDS church training. In making this decision relative to the religious issue, a decision that this Court has, in the past, avoided when at all possible, the Court determines that the conflict between the parents over this issue and the need for the children to have consistency in this area requires that such an order be entered in their best interest.

Under ARS 25-410(A)- the parent with custody chooses the children’s religion but that is completely different than a total ban on Mormonism. When this Father has his children over the weekend is he supposed to leave them home alone while he goes to church or is he not supposed to attend church either?

Could this Court ordered ban on Mormonism be seen as an endorsement of Catholicism? Would that be a violation of the First Amendment?

Even if the situation were the same I can’t see Judge Budoff, ruling the same way if the father were a member of a different religion; he would not have banned this father from sharing his beliefs with them.

Recommended Reading: The Importance of the Right Question

The speaker materials from the last J. Reuben Clark Law Society Conference are now available online. When I spoke with people who attended, I heard the most buzz about an address by Harvard Business Professor Clayton Christensen entitled, “The Importance of the Right Question.” Professor Christensen argues:

Unfortunately, too many of us are so eager to debate and get on with the right answer and the solution, that we often forget even to think about whether the right question has been asked. Lawyers pride themselves on their ability to ask penetrating questions, but I honestly think that the only people who are worse than lawyers at asking the right questions are business managers; and that the only people who are worse than managers at asking the right questions are Mormons.

The rest of the address gives examples of business and church leaders who ask the right questions.  One of the legal examples he cited was the question of separation of church and state. A Chinese colleague of Professor Christensen pointed out to him how vital religion was in American democracy:

[A]s religion loses its power over the lives of Americans, we are living on momentum.  It is a momentum that was established by vibrant religions, and then became a part of our culture.  Today there are many people in America who are not religious, who still voluntarily obey the law, follow through on their contracts and respect other people’s rights and property.  This is because certain religious teachings have become embedded in our culture.  But culture is not a stalwart protector of democracy’s enabling values.  When people stop going to their churches, or if our churches lose their power over our culture, our system will not sustain itself.  What other institutions will teach these values to Americans with the power required to guide their daily behavior?

The debate on the extent to which religious expression can be allowed in public life has been vigorous, and religion is monotonically losing ground. Whether it is the Ten Commandments etched into the stone of state and court houses, nativity scenes in public squares, the ability of school choirs to sing religious songs or having prayers at public school graduation exercises, religion increasingly is being pushed out of public view and public discourse. We have let the enemies of religion frame this debate incorrectly. Somehow the advocates of separation of church and state can’t understand what my Chinese friend saw so clearly – that the religious institutions whose role on the public stage they hope to minimize are in fact among the fundamental enablers of the civil liberties that we all now enjoy.

It’s worth reading the whole thing. You can view the talk here or download it here.

Supreme Court says park monument is government speech

The Supremes are back in town, and this session is already looking interesting. Yesterday’s unanimous decision in Pleasant Grove City, Utah v. Summum (slip opinion here) held that a government may accept certain permanent religious monuments in public parks without violating the Free Speech rights of other groups who were not permitted to place similar monuments in the park. The city of Pleasant Grove already had a donated Ten Commandments monument in its Pioneer Park but it had refused to place a similar monument from a small religious group named Summum. (More background here.) Justice Alito’s majority opinion overruled two separate 10th Circuit decisions by holding that such monuments are “a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”As SCOTUSblog noted, there were several concurring opinions, so Justice Alito’s decision may not be concrete law, but this seems to be the direction in which the Court is moving.


I think it is interesting to compare Pleasant Grove with the 1995 case Capitol Square Review Board v. Pinette, where the State of Ohio had set up an area on the Ohio Capitol grounds where any group could display their poltiical or religious beliefs. The KKK wanted to put up a huge white cross and the Ohio government balked. Representatives of the KKK filed suit to force the Ohio government to let them put up the cross and won. This decision was affirmed by the Sixth Circuit and the Supreme Court on Establishment Clause grounds. Justice Scalia’s majority opinion held that the Capitol grounds were a traditional public forum, and that the speech was permissible as long as the restrictions placed on the speech were content-neutral. Since this was clearly a content-based exclusion it was not permitted. 

Clearly, the nature of these two arenas made the difference in the outcomes. Whereas the posters and displays on the Ohio Capitol square were speech by other groups in a traditional public forum, the public park monuments were fundamentally different enough for the justices to declare them government speech. It is also important to note that this case was not decided on Establishment Clause grounds, although that may be where the case is headed.


In the background of this discussion is the fact that most of the city of Pleasant Grove is Mormon. That isn’t central to the First Amendment analysis, but the parties mentioned it in a NY Times article last year:

The Ten Commandments monument here stands in Pioneer Park, which pays tribute to the city’s frontier heritage, one that is mostly Mormon. The two sides differ about how best to honor that heritage.

[Pleasant Grove Mayor Michael] Daniels said the monument broadly reflected local history. Mr. Barnard, the Summum lawyer, said the Ten Commandments did not play a central role in the Mormon faith. “If they wanted to quote from the Book of Mormon,” he said, “that would, at least, relate to the pioneers.”

“Mormons came to Utah because of religious persecution,” Mr. Barnard added. “The pioneer heritage in Utah has to be escape from persecution.” 

I was amused by the idea that the Ten Commandments do not play a central role in the Mormon faith — I think the LDS Church and most of its members would refute that assertion. The reason commonly given for Ten Commandment monuments on government property is that those principles are central to the Judeo-Christian tradition out of which the Anglo-American legal system was formed. You probably couldn’t say the same about the Book of Mormon, even in Utah. I know there were court systems run by the Mormon Church in the early Deseret Territory days, but I don’t know of any legal legacy remaining in the Utah State courts.

God in the courtroom

I recently was present for oral arguments where a pastor was representing himself pro se. The judge mentioned that a party associated with the case was absent due to family health reasons, and the pastor requested that the court observe a moment of silence for the family. Not knowing how to respond, the judge and the rest of the court awkwardly complied and bowed their heads until the pastor declared the moment over, while I looked on incredulously.

This episode with a pro se litigant was unusual, but Deity is regularly invoked in many courtrooms. Where I currently practice, it is common for a court to open with with an announcement such as “May God save the United States and this Honorable Court.” Many judges and members of the bar bow their heads as this invocation is proclaimed. In many jurisdictions the swearing of an oath ends in “so help me God,” a phrase that was recently challenged again with respect to the swearing-in of President Barack Obama. Religious references are also common in the legislative branch. Sessions of Congress and state legislatures are traditionally opened with a prayer.

The bizarre courtroom incident with the pastor made me consider my own position on religion in the courtoom and other government functions. Despite being a personally religious person, I have always felt somewhat uncomfortable with the institutionalization of religion. Perhaps this is due in part to having grown up in a region of the United States where Mormonism was a very small minority religion. I had a sense that whenever God was invoked in public, it was done in such a way and with language that was different from my own religious beliefs. I also identified at an early age that there was a certain amount of hostility or rejection associated with my denomination. I was a Mormon kid, and being Mormon was a little weird. I only encountered invocations or public religious observations occasionally, but whenever they occurred I was keenly aware that they represented a difference between everyone else and me.

But even though I’m not always comfortable with religious references in government, I don’t think that they should be done away with entirely. I think it’s important that the democratic process be a free marketplace of all ideas, religious or otherwise. Consequently, I generally think that the exclusion of all religious references in any branch of government is inappropriate, and contrary to the purpose and language of the First Amendment. My general rule of thumb is that personal statements of conviction should always be allowed.

Prayers before legislative sessions or “so help me God” oaths are usually called “de minimis” religious references by the Supreme Court, and the Court seems to take a fairly tolerant approach to these references, since they were common practices long before the United States was even formed. But this isn’t an opinion that is universally shared. In January, MichaelNewdow (the same litigant who challenged the phrase “under God” in the Pledge of Allegiance) sought to exclude a clergy invocation and benediction from the presidential inauguration and enjoin Chief Justice John Roberts from using the phrase “so help me God” in the presidential oath. Mr.Newdow had filed a similar lawsuit before at the second inauguration of President George W. Bush, and this most recent wasn’t likely to prevail because he made all the same arguments.

I noticed that U.C. Berkley Law professor Eugene Volokh had an interesting thought about the prayers at the inauguration. He suggested that “a President’s inviting a particular clergyman to say things at the President’s inauguration might well be treated as an extension of the President’s own right to express whatever views — including denominationally specific views — he wants to express as part of his own speech.” This seems like it touches on my rule of thumb regarding personal expression of speech, although it may not be applicable to courtroom oaths or legislative prayers because the courts and the legislatures are not embodied in one person.

As you likely know, Mr. Newdow’s lawsuit was again rejected and both the oath and the prayers went forward as planned. And thanks to a slip of the tongue by the Chief Justice and racial rhymes in the inaugural benediction, the references to Deity became the least controversial parts of the day.

Religious Freedom Day 2009

By presidential decree, today is Religious Freedom Day. President Bush issued a proclamation three days ago to create this day of observance. The date was apparently chosen to honor the passage of the Virginia Statute for Religious Freedom, passed on this day in 1786. I’m sure the fact that President Bush has less than a week left in office had nothing to do with the date.

I’m embarrassed to say that I was unfamiliar with the Virginia Statute for Religious Freedom, but I’m very happy to have it called to my attention. Thomas Jefferson apparently proposed the law in 1779, but it wasn’t passed until 1786. The document is a bit difficult to read, with more than 700 words crammed into two colossal sentences, but it is worth the effort. I find three things particularly interesting about the Statute. The first is how familiar it sounds:

. . . Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

I think the Virginia Statute for Religious Freedom articulates the same American ideals that found home in the Eleventh Article of Faith. It certainly seems to be in harmony with the Mormon Church’s teachings on the matter.

The second thing I noticed was how the concept of agency was referenced throughout the text. The Statute begins:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do . . .

 The Virginia legislators essentially explained the necessity of free agency in the Plan of Salvation. I think this is fascinating, and I wonder if this was a commonly held belief at the time.

The third and final observation I have is how the drafters of the Virginia Statute for Religious Freedom weren’t reluctant to invoke Deity in their legislation. Presumably the legislators subscribed to different denominations or ways of thought — Jefferson himself apparently subscribed to a deist philosophy — but that didn’t preclude any references to God in the Statute. This sort of language also makes it fairly clear that the concept of freedom of religion held by the so-called Founding Fathers was distinct from the views of many today.

I occasionally hear members of the Mormon Church (often around the 4th of July) express the patriotic notion that American was founded on “just and holy principles.” If you were to argue, as many have done before, that America was founded by inspired men, the Virginia Statute for Religions Freedom would be a good starting point.

Indiana Church/State Case Worth Watching

Huntington, Indiana school officials in a northeastern Indiana district deny that a religious education program offered during the school day illegally advances religion, as a federal lawsuit claims. A complaint filed by attorneys with the American Civil Liberties Union of Indiana on behalf of an unnamed woman and her eight-year-old son asks a federal judge to shut down the program and bar the school district from providing it with utilities or any other support. The boy, identified only as “J. S.,” attends Horace Mann Elementary School, which offers third-and fourth-grade students a “release time” program for “By the Book Weekday Religious Instruction” through the Associated Churches of Huntington. The Huntington County Community School Corp. argued in a response to the lawsuit that the release time program neither advances nor inhibits religion. Similar programs at elementary schools have been protected by a 1952 U. S. Supreme Court ruling that allowed students to receive religious education during school hours but not on school property.

This will be an interesting case to watch for its possible impact on LDS seminary programs in states such as Utah, Arizona, and Idaho where students are released from school to study the gospel. Likewise to the program ran in Indiana the LDS seminary programs are ran by private funding on private property. We’ll keep you up to date as this case moves forward.