News Archive 2009 May

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

  • World of Abraham Lincoln, Joseph Smith. LDS Church News
  • 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.

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.

Thoughts from an ’09, Georgetown Law Student

Read the sentiments of a recent LDS, Georgetown Law Grad. He does an excellent job of sharing his feelings about the experience and his goals for the future. As I’m staring down one more year of law school I can’t help but feel a little jealous. Congrats!

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.

New Hampshire gay marriage bill stalled over religious exemption

I saw yesterday (via the Mirror of Justice) that the Democratically-controlled New Hampshire House of Representatives blocked passage of a bill that would have allowed same-sex marriages in the state. You may have seen news reports that New Hampshire Governor John Lynch promised to sign the bill if a provision was added to allow clergy to decline to perform such marriages. Here’s the significant portion of the added language:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

As Minnesota Law prof Dale Carpenterpointed out, the language is fairly broad but it could be broader. It doesn’t cover state employees, for example, or private individuals who are not actually managed or directed by a religious entity.  But it’s definitely the broadest protection included in same-sex marriage legislation so far, and it will likely set the pattern for states in the future. This is the first concrete attempt I have seen to reconcile the conflict between religious liberties and the gay rights movement, and though I oppose same-sex marriage, I found it quite hopeful. It even seemed to reinforce the argument of Dave Banack of Times & Seasons that the LDS Church should focus on defending religious liberties rather than opposing same-sex marriage.

But the New Hampshire House killed the bill. At first glance it appears that same-sex marriage proponents were willing to have the bill defeated before conceding any ground. This is not a productive approach, and it is precisely the type of behavior that has created the clash between religious groups and same-sex marriage supporters. As an opponent of same-sex marriage, perhaps I should be glad that the measure was defeated. But I’m really disappointed that the New Hampshire legislators were so unwilling to recognize appropriate accomodations to First Amendment religious rights.

For more information on the intersection of religious rights and gay marriage, see the Pew Forum’s Question & Answer session today with George Washingoton Law professors Chip Lupu and Robert Tuttle.

Legal Briefs: Huntsman to China, Blogs are Liberal, PBS doesn’t care for Christianity, Mormon swimmer causes drama in Myanmar

Obama makes it official, Utah’s Governor Huntsman is the United States Ambassador to China. Huntsman, 49, is fluent in Mandarin Chinese from his days as a missionary for The Church of Jesus Christ of Latter-day Saints in Taiwan. He previously served as U.S. ambassador to Singapore and as a deputy U.S. trade ambassador. Daily Herald.

A Brigham Young University survey of more than 200 journalists seems to indicate that news blogs seem to be “left leaning” and more popular than many conservative blogs….I think I could have told you that without the survey…good thing we’re here to give the blogosphere balance!

PBS is planning to kick out stations that broadcast ‘sectarian religious programs’, this includes KBYU. Yes, speech in America is free as long as you’re not a Christian, Conservative, or Straight. News Busters.

In Myanmar, riot police behind barbed wire barricades ringed a notorious prison where pro-democracy leader Aung San Suu Kyi was to go on trial Monday for allegedly harboring an American (who is LDS) man who swam to her lakeside home.

Law Schools Limit Bathroom Breaks During Exams

As ATL reported several days ago, law schools across the country are worried about wide spread cheating on law exams. How is this cheating believed to occur?… In the bathroom during exams. In response to this possible cheating Syracuse University College of Law has begun limiting the number of bathroom breaks a student can take during an exam to just one! The only exceptions to the one bathroom break one exam rule is for students who provide the dean with medical documentation explaining their need to use the bathroom more than once. I think all this rule is going to do for cheating Syracuse law students is they’ll now spend more time in the bathroom reviewing outlines during their one break. Fordham University School of Law is considering following Syracuse’s lead to prevent bathroom cheaters as well.

Maybe Syracuse and Fordham could take the University of Dayton’s approach and put so many security cameras in the school that you’d be afraid to cheat in the bathroom because there might be security cameras watching you in there as well. There’s no word yet on whether or not any of these schools plan on charging for restroom use that may be one way to cut back on bathroom use and raise revenue at the same time!!!

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Legal Briefs: Kidnapped daughter, Professor EchoHawk, Michael Steele apoligizes to Romney

  • Utah police have completed their interviews, but it’s still unclear whether a mother and father will face criminal charges for taking their adult daughter from Utah to their Texas home upon learning she had become a Mormon. Salt Lake Tribune.
  • The Senate Indian Affairs Committee on Thursday backed Utahn Larry EchoHawk, a member of the Pawnee tribe and a Brigham Young University law professor, to head the Bureau of Indian Affairs. EchoHawk is now one vote away from taking over as head of an agency that serves 1.7 million American Indians and Alaskan natives. Salt Lake Tribune.
  • Republican National Committee Chairman Michael Steele has apologized for a recent comment he made that linked Mitt Romney’s failed presidential campaign to Republicans’ concern about Romney’s Mormon faith. USA Today.

Legal Brief: Huffington Post

Matt Coles, director of the ACLU’s LGBT wrote an article for the Huffington Post today; Mormons and Knights and Understanding Proposition 8. As you can imagine I don’t agree with Coles but I enjoy hearing all sides of an argument.

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.

Disciplinary councils as alternative legal structures

Last week Steven Danderson of FAIR Blog linked to a paper on the LDS Church’s disciplinary council system as an alternative legal structure. Danderson initially attributed the paper to Santa Clara University law professor David D. Friedman, and the paper was hosted at Friedman’s site. I thought the paper was interesting, but it didn’t take me long to conclude that it wasn’t written by Friedman. The piece is more expository than analytical, it seemed more probable to me that the paper was written in the perspective of someone within the Mormon Church.

Fortunately, we have a little inside information from another Bloggernacle denizen, Keri Brooks, who is actually at SCU Law right now. She revealed that the paper was actually written by an anonymous student in Professor Friedman’s seminar “Legal Systems Very Different From Ours,” and a little digging in Friedman’s website bears that out.

The immediate lesson to learn from this is to watch how you attribute material online. (Danderson still hasn’t updated or amended his post to clarify the paper’s authorship.) But I still appreciate his calling attention to the paper because Mormon disciplinary councils are an interesting topic, and I haven’t seen much written on the topic. I know William & Mary Law professor Nate Oman has written on Mormon Church courts before and after the Utah territory became a state, but his article is more of a historical perspective than a current analysis. Mormon disciplinary councils are interesting for a variety of reasons, including the fact that they are derived in part (though not entirely) from Anglo-American legal traditions, and yet they operate in a wide variety of countries that have legal traditions far different from Anglo-American jurisprudence.

The paper on Professor Friedman’s site is not long, so give it a look-see, especially sections IX – XI.

Update: Danderson amended his post to clarify the paper’s authorship.

Of clients and conscience

This morning I was in court and watched a guy ask the court to allow him to sell off part of a structured settlement. He had been in a bad car accident several years before, and as part of the settlement he received monthly payments and several significant lump-sum payments. It turns out that the guy had sold off parts of this settlement nearly a dozen times before, all to pay off debts or to start up new ill-conceived businesses ventures. Ever time he sold off part of the structured settlement, this guy got about 30-40% of the current value of the payments — a terrible deal by any definition.

I am somewhat familiar with the attorney for the company that buys up these settlements. And with the economy in the tank, I’ve seen him in court pretty frequently with people selling off lots of money in order to pay their bills. The attorney is fairly pleasant, but I don’t like him much because of what he does. To my mind, his entire legal practice revolves around taking advantage of ill-informed and short-sighted people. And lamentably, the laws governing these financial institutions in my state don’t provide much protection for the consumers.

I got to thinking about how conscience can conflict with clients. One of the dilemmas an attorney occasionally faces is whether to accept a client with a reputation, history, or interests that run counter to the attorney’s personal morality. This is often a morality based in religious beliefs, but non-religious attorneys also face moral dilemmas. As I watched the proceeding this morning, I realized that I wouldn’t want to represent a company like the structured settlement buyer. I don’t think my conscience would let me facilitate what I believe to be predatory transactions.

A friend of mine is very interested in First Amendment law, but after much thought he turned down a chance to work on an interesting Free Speech case because the client was a strip club. He believed that the operators of the club were entitled to the same Free Speech rights as you or I, but he ultimately decided he couldn’t work on the case. This sort of dilemma is experienced by many Christian or religious legal practitioners. There may even be a few Mormon-specific moral dilemmas. For example, given the LDS Church’s position on tobacco and alcohol, an LDS attorney might not feel capable of representing a cigarette or liquor company.

Similar moral dilemmas may arise in certain types of law. I’ve heard a lot of people say that their conscience wouldn’t let them work in criminal defense. It may be surprising, but I don’t think my conscience would prevent me from representing a criminal defendant. I’ve actually worked on criminal cases on both the prosecution and the defense side, and even guilty defendants deserve effective counsel. In a way, I would have a larger crisis of conscience doing structured settlement deals like the one I saw today than representing an accused child molester, because at least representing the accused molester serves the broader justice system.

I’m interested to hear from other people on this subject. Are there certain areas of law or clients that would conflict with your personal morality? Have you ever turned down a client or a transaction as a matter of conscience?

2010 – Top ten most Mormon friendly law schools

Next year’s top ten most “Mormon friendly” law schools will be announced on March 1, 2010! The law schools that will participate are:
Cal. Western
Case Western
Franklin Pierce
George Mason
George Washington
Lewis and Clark
Missouri- Columbia
Missouri- KC
Ohio State
Oklahoma City
Pacific McGeorge
Penn State
Saint Louis
San Diego
Seton Hall
Texas Tech
Washington and Lee
William and Mary

If you think there is a law school that should be added to our list let us hear from you. We received a lot of great comments about the criteria we used in creating our list and we’ll be implementing some of those ideas in next year’s list to make it even more accurate.

Hate crimes and hate speech

Last week the U.S. House of Representatives passed HR 1913 , the Local Law Enforcement Hate Crimes Prevention Act. This piece of legislation has been opposed by many conservative Christian groups that fear prosecution under the proposed law if a pastor spoke out against homosexuality. Howard Friedman at Religion Clause has been following the discussion of the bill , so if you’re unfamiliar with the proposal, you should check it out. Since it’s in the news, I thought I would put in my two cents about hate crime laws and the closely related hate speech laws and codes. I personally oppose them, for both legal and pragmatic reasons.

For starters, I think hate crime and hate speech laws are patently unconstitutional. There are definitely some Equal Protection problems when a crime against a member of one ethnic or racial group is treated differently than the same crime committed against a person of another group. But the primary problem with hate crimes and hate speech is that they punish thought. Even though it is deplorable, it is not illegal to hate a minority or to believe that your particular race is the superior, pure race. I think it is unconstitutional and indefensible to punish a person (or increase that person’s punishment) for believing something when those constitutionally protected beliefs are the motives for a crime. If the First Amendment protects an idea, it must protect that idea no matter how it is used.

My second reason for opposing hate crimes and hate speech is less of a legal reason and more of a pragmatic one. I noticed that the progressive think tank ThirdWay recently argued that the Hate Crimes Prevention Act is actually good for religious groups, since it would expand protection for religious groups. So it might seem that a religious person like myself should support the legislation. But from a common-sense standpoint, this is a bad idea. If we pass laws punishing constitutionally protected ideas, that opens the door for similar laws that can restrict our own ideas.

Where I went to law school the university had considered enacting a hate speech code on campus in the 1990’s, and had consulted with several law school professors and student groups in the process. One of the constitutional law professors told them it was a terrible idea and almost certainly unconstitutional, but the school was still determined to enact the hate speech code until the local Lamda fraternity weighed in. They said that they recognized the fact that the hate speech code would protect homosexual students, but they did not support the proposal. They knew that any rule or law advocating one ideology or punishing another can open the door to similar laws advocating different ideologies. Hate speech codes and hate crime laws essentially turn over to the democratic process the job of protecting the rights of minorities. But majorities can change in a relatively short period of time, and very purpose of the First Amendment is to ensure that the rights of minorities are not in the hands of the majority.

The Hate Crimes Prevention Act might afford my religious beliefs additional protections, but only how and when the current majority chooses. When the majority changes its mind, my protections go out the window. So from a pragmatic standpoint, I would oppose any sort of hate crime legislation, leaving standard penal codes to do the work they were intended to do.