News Archive 2009 February

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.

Proposed Honduran Temple to be Moved


The Church of Jesus Christ of Later Day Saints has announced it will not build a temple on its planned site in Tegucigalpa, Honduras, bowing to the wishes of protesters who feared the temple would overshadow and block the view of a historic and iconic Marian shrine.

The LDS First Presidency originally announced the temple for Honduras’ largest and capital city of Tegucigalpa on June 9, 2006, to meet the needs of 120,000 Mormons in the country. A year later, LDS members and officials helped break ground for the sacred structure to be built adjacent to an LDS Institute of Religion building. But construction had to be halted in September 2007, due to the opposition of several city officials.

“We did realize it was relatively close [to the basilica] Mormon leaders in Honduras met with the Catholic cardinal there, who was “gracious and “amicable,” Trotter said, but asked that the church move its temple to a different location. and considered design options to minimize the possible impact,” LDS spokesman Scott Trotter said Friday. “None were satisfactory.”

After months of negotiation, Tegucigalpa’s mayor refused to approve the plans and the church withdrew. “Out of respect for the laws and to avoid any perceived stand against the Catholic Church, LDS Church officials made the decision to relocate the temple,” according to an independent LDS Web site

Suyapa’s story traces back to 1747, when Alejandro Colindres, a Honduran laborer, reportedly found the tiny statue, only 2.3 inches tall, while sleeping in a corn field northeast of Tegucigalpa. It was sticking in his side as he slept. Colindres took the statue home, so the story goes, and kept it on a family altar for the next 20 years. Devotees built the basilica in 1777 and, in 1925, Pope Pius XII declared Suyapa, the patron saint of Honduras.

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.

Senator Buttars Removed From His Committee Chair

Should Chris Buttars have been forced out of his judicial committee chair for his negative gay comments? Or was this a violation of his first amendment right to free speech?

Utah State Senator Chris Buttars, R-West Jordan, told former local television reporter Reed Cowan, an openly gay documentary producer, that gay activists are “probably the greatest threat to America going down.”

The comments drew calls for Buttars’ resignation in Utah and elsewhere. The Washington, D.C.-based Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, said that by Friday more than 15,000 e-mails had been sent to Utah Senate President Michael Waddoups, R-Taylorsville, demanding that he condemn Buttars’ remarks.

Waddoups did not condemn Buttars’ statements and said he kicked Buttars off the committee primarily as a way to draw attention away from him. In a brief news conference Friday, Waddoups declined to say what comments — if any — Buttars made that he and other Republicans disagreed with.

“We think he’s a senator that represents the point of view of many of his constituents, of many of ours,” Waddoups said. “We agree with many of the things he said. We may disagree with some of them, we may disagree with some of the ways he said it.”

Senator Buttars has said that he will not issue an apology and in a statement released on his blog, Buttars wrote that he will continue to defend traditional marriage. “I disagree with my removal as Chair of the Senate Judiciary Committee, since my work there is entirely unrelated to my opposition to the homosexual agenda,” Buttars wrote. “Still, I’m a grown man and I can take my knocks. When it comes right down to it, I would rather be censured for doing what I think is right, than be honored by my colleagues for bowing to the pressure of a special interest group that has been allowed to act with impunity.”

As chairman of the committee, Buttars frequently took pride in killing legislation that would have extended some legal rights to gay couples. He has long complained that gay people lack morals and are trying to indoctrinate others into a gay lifestyle. “What is the morals of a gay person? You can’t answer that, because anything goes. So now you’re moving toward a society that has no morals,” Buttars told Cowan in the January interview, which was about the Proposition 8 campaign to ban gay marriage in California and the involvement of The Church of Jesus Christ of Latter-day Saints.

In comparing gay activists to Islamic radicals, Buttars said, “Muslims are good people and their religion is anti-war. But it’s been taken over by the radical side. And the gays are totally taken over by the radical side.”

While Buttar’s comments are no doubt controversial, is he restricted in saying what he believes to be true just because he is a politician?

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.

Where to Find Free Law School Outlines

Before I entered law school I’d never heard of an “outline” but since the moment I stepped into law school on the first day I heard everyone talking about outlines–study guide to the class. Different law school groups have “secret” outlines that they pass down from year to year. I’ve been given some very good outlines from some recent grads and other students which have definitely helped out. In my quest to find smarter (and faster) ways of studying I found the law school outline jackpot at They have almost 29,000 outlines from every law school in the country. The outlines are keyed to each law school, professor, class, and text making them very helpful. The outlines are completely free; the only thing that they ask from you is that you give them one outline for each outline that you download. I’ve added a few outlines to the website and in some ways its nice to know that all the hard work I put into some of those outlines with benefit someone else.

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.

LDS Church Vandalized in Oregon

The LDS Church on Cherry Park Rd. in Troutdale, Oregon was recently vandalized. Someone spray painted swastikas and racist comments on the church. The vandal(s) also struck a nearby Prespreterian Church and the Douglas Cemetery as well. A witness did see a white male writing on a cemetery building Monday evening. Troutsdale Police have not yet made any arrests but are pursuing all leads.

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).

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

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

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

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

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

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

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

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

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

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

New scrutiny on the billable hour

Last week the New York Times featured an article on how the down economy has forced many top law firms and their clients are reexamining the common law firm practice of billable hour. The billable hour is the focus of many young associates’ waking hours, and everyone in the legal industry recognizes it is a flawed model. Not only does it make for extremely stressful working conditions when associates are expected to bill 2400 hours or more a year, it also presents a strong financial incentive to the firm that runs counter to the interests of the clients. The Times article highlights how the poor economy has forced some of the big firms to make concessions to their clients that demand cheaper fees.

None of these critiques are new. In his now-infamous ABA Journal article “The Billable Hour Must Die,” Scott Turow recites many of the problems the billable hour poses to the profession. It creates tensions and suspicion between a lawyer and her client; it prevents lawyers from serving the public and underprivileged segments of society through pro bono work; it results in diminishing returns for ladder-climbing associates who have smaller and smaller chances of ever making partner.

The pressures of the billable hour are perhaps more acute for young LDS attorneys, who often hold ecclesiastical positions and have young children in addition to the significant burdens placed upon them by their employers. Everyone talks about a balanced lifestyle, but the current billable hour system virtually guarantees imbalance. I know quite a few LDS attorneys who have left private practice at large or mid-size firms and have entered the public sector. They all say the same thing — they don’t make as much money, but they are much happier. During law school I summered at a small immigration firm that mostly billed by project or by visa petition rather than by the hour. We still worked a few evenings or weekends when things were busy, but the stress level was significantly lower and the firm’s financial incentives didn’t conflict with those of the clients. Immigration practice might be particularly suited for that kind of billing, but I’m sure it’s not the only practice that could be more effectively without the billable hour.

In “The Billable Hour Must Die,” Turow cites the 1977 Supreme Court case of Bates v. Arizona (which invalidated previous prohibitions on lawyer advertising on First Amendment grounds) as the opening of the competitive floodgates in American law firms. And while I’m not completely naïve, I’d like to believe that the current economic turmoil might apply those same market forces in a positive way.