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.

From the Blawgernacle – August 1, 2009

If you read legal blogs you know that they are often called “blawgs,” an extremely unimaginative combination of the words “law” and “blog.” Similarly, the Mormon portion of the Bloggosphere is often given the horrendous name “Bloggernacle.” I don’t know if there is a name for the legal corner of the Bloggernacle, but I’m calling it the  Blawgernacle until I can think of a better name.

I wanted to highlight a few good posts from the newly-christened Blawgernacle that have been posted in the last week. The first is by Geoff B. of Millennial Star about the Mormon angles of the Robert Bork Supreme Court nomination hearings. He mentioned a few interesting tidbits, including the fact that Bork and a young associate named Dallin Oaks helped end a “Jewish quota” at Kirkland & Ellis in Chicago. Geoff’s article is here.

The second post of note is by Blawgernacle notable Nate Oman of Times & Seasons on “The Evolution of Excommunication.” The development and interaction of LDS Church courts with the American legal system is on of Oman’s areas of interest, but I thought this post was especially interesting. Oman looked at old Church Handbooks published in 1890, 1920, and 1940, and he identifies a shift in focus from remedying past wrongs to seeking the spiritual welfare of the individual. Anyone familiar with criminal legal theory will recognize that this shift is similar to the shift in criminal law from retribution or isolation to rehabilitation.  Oman’s article is here.

Legal Briefs: Obama nominates Sotomayor to High Court; Prop 8 upheld but performed marriages stand

  • This morning President Barack Obama nominated Second Circuit Court of Appeals Judge Sylvia Sotomayor to replace Supreme Court Justice David Souter, who announced his retirement earlier this year. Judge Sotomayor has long been on the short list of potential nominees, and would be the first Justice of Latino heritage. Howard Friedman of Religion Clause already has a run-down of Judge Sotomayor’s religion decisions.
  • The California Supreme Court issued its ruling on the legal challenges to California Proposition 8, upholding the referendum but letting stand the approximately 18,000 gay marriages already performed in the state.

Playing ball at the Highest Court in the Land

One of my favorite legal blogs to read lately is Hunter’s Query, the blog of the Howard W. Hunter Law Library at the BYU Law School. Shawn Nevers, the blog’s author, always has some brief but interesting things to say. Sometimes it’s academic, but it is often entertaining.

Last week he drew my attention to a Salt Lake Tribune article about a the infamous Supreme Court gymnasium, located above the Supreme Court chambers. (I genuinely thought this was a urban legend until I visited the Supreme Court building.) The article had quotes from couple BYU Law grads and professors who clerked for Supreme Court justices, and it’s pretty entertaining. The best part is Justice Clarence Thomas’ assertion that Supreme Court justices never play H-O-R-S-E. They play H-A-B-E-U-S C-O-R-P-U-S.

Photo credit: Balakov.

BYU Law alumna recounts Supreme Court case

Last month we mentioned the Supreme Court’s holding in Pleasant Grove, Utah v. Summum , in which a unanimous Court held that a 10 Commandments Monument in a public park was government speech. On the same day we talked about the case Tina Petersen, the city attorney for Pleasant Grove, spoke to a group of BYU Law School students about the case. Petersen, a 1995 BYU Law alumna, discussed her thought process when she first learned of the lawsuit in 2003:

When Peterson first became aware of the case, she began her research by asking herself and the city council an important question.

“Did we establish the monument for a religious purpose—to promote a certain religion?”

The answer, she found, was that they had not.

Then, Peterson began asking other important questions. “Do we move the monument? Do we keep it there? What are the financial ramifications for the city to defend the lawsuit at this time?”

I think it’s interesting to hear from a Supreme Court litigant about the infancy of the case. The strategic and practical considerations faced by a small city government are also important; money and workload demands prevent quite a few cases from being litigated or appealed. Eventually the City of Pleasant Grove was joined by dozens of large and powerful amici, but there was no guarantee of any outside support.

Ms. Petersen’s remarks also underscore a frightening but fantastic reality for young attorneys — you can be a part of enormously important cases, transactions, or legislation. Young lawyers in government service or public interest organizations may not make the big bucks, but they often get the big cases. That’s how an attorney just a few years out of law school working in a small city can end up working on a Supreme Court case.

Supreme Court Vacancy?


Justice Ruth Bader Ginsburg has hinted at a possible vacancy “soon” at the US Supreme Court, without indicating who would be leaving.

Speaking Friday at New England Law Boston’s annual “Law Day,” Ginsburg told students that the nine justices only take pictures together when a new member joins the high court.

Ginsburg, who turns 76 on Sunday, declined to elaborate on her comments. She underwent surgery for pancreatic cancer in early February but has returned to the bench. Despite speculation that she might leave the court, Ginsburg has on several occasions expressed her intention to remain on the court for several more years.

Only the second woman to serve on the Supreme Court, she is one of five justices who are over 70 years old. Justice John Paul Stevens, the most liberal of the justices, is the oldest at 88. He turns 89 next month. Stevens, Ginsburg or fellow liberal justice David Souter, 69, have been expected possibly to retire soon, so it is likely that the whoever Obama replaces will be a liberal and so the overall balance of the court will remain the same.

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.

George Q. Cannon’s review of Reynolds v. U.S.

I occasionally like to point out interesting law-related posts that I stumble across in the Bloggernacle (what a terrible name, that). William & Mary law prof Nate Oman of Times & Seasons has a brief post up about a publication George Q. Cannon wrote with the lengthy title of A Review of the Decision of the Supreme Court in the Case of Geo. Reynolds v. the United States. Cannon’s Review discusses the 1879 Supreme Court case that held that the practice of plural marriage was not protected by the Free Exercise Clause. I understand that this case is still carried in many constitutional law texts because it was the first Supreme Court decision to tackle the issue head-on, but I don’t remember reading it in law school. I’ve been perusing Cannon’s Review this afternoon and I think it’s fairly accessible and interesting for a legal text of that time period.

Oman notes that Cannon may have had help drafting the Review, but that “the pamphlet shows a surprising familiarity with American constitutional history, theoretical jurisprudence, and criminal law.” I don’t think the Review is still in publication anywhere, but thanks to the bounties of the public domain and Google’s Book Search project, you can read it online or download a PDF.

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.

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.