LDS Law Students

The future of the blog

2009-06-16T12:04:00.000-07:00

This blog has essentially wound down, since all of the previous participants have long since left law school. If you are looking for interesting topics for LDS lawyers or law students, we recommend MormonLawyers.com or LDS Law. There are also plenty of great Mormon lawyer who write interesting legal blog posts from time to time, such as Nate Oman, Kaimi Wenger, John Fowles, Kevin Barney, Steven Evans, and many others.

If you are interested in doing legal blogging or would like to keep this site going, contact us at ldslawtudents at gmail dot com.

Arkansas court rules that Mormonism is not Protestantism

2008-10-20T09:54:00.000-07:00

The Arkansas Court of Appeals recently handed down an unusual ruling in which a man was held in contempt for involving his children in the LDS Church. Actually, it's not as dramatic as it sounds. When Joel and Lisa Rownak divorced in 2005 they agreed that their two children would be raised "in the Protestant faith." Since this agreement was entered as part of the divorce decree, it was enforceable by the court. Subsequent to their divorce, Joel Rownak converted to Mormonism and involved his two sons in his new faith, including baptizing one of the boys. Rownak made several free speech arguments, but the Arkansas court still found in contempt of the decree. The court relied heavily on the fact that Rownak himself had asked for the language to be placed in the divorce decree.
The interesting part of this case, as it relates to the Mormon Church, is the court's discussion of whether the Church of Jesus Christ of Latter-day Saints was a Protestant church. The court noted:

Based upon testimony by appellant’s wife, a statement by the president of LDS that was publicized on the church’s website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons.

Ark. App. CA08-193 p. 4. The question of whether Mormons are Protestants is mildly interesting, but it's fairly clear cut. The Arkansas court didn't seem to have much trouble coming to its conclusion. It would be more interesting if the divorce decree had required the children to be brought up "in the Christian faith." Then you would have a U.S. court attempting to determine an issue about which there is significant disagreement among various denominations. What sources would a court consult in determining whether Mormonism is part of Christianity? Would a court consult the LDS.org website, like the Arkansas court did on the Protestant issue? Or would the court instead rely on other religious authority outside of the LDS Church? And is even proper for a court to determine such controversial issues?
As much as I'd like to see the outcome of such a case, it probably isn't the sort of dispute that a court should resolve. In the Arkansas case there really wasn't much of a dispute over whether Mormonism was Protestantism. But it still raises some significant constitutional questions. On this topic UCLA Law Professor Eugene Volokh opined:

I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

The Arkansas Court of Appeals' decision is available here.

Property law and Mormon temple announcements

2008-10-09T14:16:00.000-07:00

Last Saturday's announcement of five new LDS temples was notable, if not for quantity, then locality. President Thomas S. Monson's predecessor, Gordon B. Hinckley, announced several dozen temples during his tenure as President of the Church of Jesus Christ of Latter-day Saints. But the locations these most recent temples are well-known and high-profile: Rome, Italy; Philadelphia, Pennsylvania, and the greater Kansas City area, among others. Rome is obviously a high-profile location, particularly given its proximity to the seat of Catholicism. A temple in the Kansas City area makes many people think of the temple in Independence, Missouri, which was announced by Joseph Smith in 1831 but never built. And the Philadelphia site is notable for its central location in a major American city.

View Larger Map

The site of the Philadelphia temple has already been identified as a parking lot the Church currently owns. For every temple or chapel announcement, there are hundreds of hours of quiet work in the background arranging the property sales. Temple building projects occasionally spark legal battles over issues such as zoning requirements. The opposition to the Mormon temple near Boston, Massachusetts, prevented the LDS Church from placing a steeple on the structure until after it was dedicated and in operation. Only time will tell whether these most recent announcements will result in any litigation, but you can be sure that the Church's property arm, Property Reserve, Inc., will be working overtime to get it all done.

First Presidency letter and free expression

2008-09-29T10:42:00.000-07:00

Yesterday, on the very day chosen by the Alliance Defense Fund for their "pulpit plan," the Church of Jesus Christ of Latter-day Saints released its customary letter about voting and political neutrality. Here is the letter in its entirety:

Political Participation, Voting, and the Political Neutrality of the Church
As citizens we have the privilege and duty of electing office holders and influencing public policy. Participation in the political process affects our communities and nation today and in the future.
Latter-day Saints as citizens are to seek out and then uphold leaders who will act with integrity and are wise, good, and honest. Principles compatible with the gospel may be found in various political parties.
Therefore, in this election year, we urge you to register to vote, to study the issues and candidates carefully and prayerfully, and then to vote for and actively support those you believe will most nearly carry out your ideas of good government.
The Church affirms its neutrality regarding political parties, platforms, and candidates. The Church also affirms its constitutional right of expression on political and social issues.
Sincerely yours,

Thomas S. Monson
Henry B. Eyring
Dieter F. Uchtdorf
The First Presidency

As I wrote last time, the Church's stance on political neutrality is no big surprise. I was, however, interested in that last sentence, in which the Church affirms its "affirms its constitutional right of expression on political and social issues." The LDS Church and other religious groups have played a significant role in the campaign supporting California Proposition 8, and some people both within and outside of the LDS Church are uncomfortable with religious groups becoming so involved in politics. I find it interesting that this letter contained a statement of the Church's free speech rights. These sorts of letters are issued every election year, and while I don't have the text of any previous letters, I think the last line is a new addition. Certainly, from a legal standpoint, the Church's political involvment is appropriate as long as it remains issue-based, rather than party- or candidate-based.

Churches challenge IRS policy

2008-09-15T09:28:00.000-07:00

There is an interesting fight going on right now between religious groups over the proper role of politics and religion. A Phoenix-based organization called the Alliance Defense Fund has encouraged ministers around the country to give political sermons on Sunday, September 28. The ADF wished to challenge an IRS restriction that would remove a church's tax-exempt status if pastors endorse of political candidates, and has offered to represent any church investigated by the IRS as a result of any political sermon delivered on that day. It even suggests that participating pastors The defense fund has met with opposition from other religious organizations, however, that disagree with the fund's purpose. Fifty-five religious leaders have filed a complaint with the IRS to stop the ADF's plan.

As is often the case, the story is a little more complicated than it may initially seem. For example, many of the religious leaders that complained to the IRS are from the more liberal United Church of Christ, whereas the Alliance Defense Fund is a conservative Christian group. UCC ministers might also be a little wary of such a proposal after it was investigated by the IRS in 2007 after hosting Barack Obama at its convention.

Despite the protests, more than three dozen ministers from 20 states have signed up to participate in the "pulpit plan." However, don't expect any political endorsements from LDS pulpits on September 28. (Not authorized ones, at any rate -- I'm sure we have all heard a few politically-charged testimony meetings.) The LDS Church's stance on political neutrality is regularly reaffirmed through open letters and press releases, particularly during political campaign seasons. You could look at this as the Church putting into practice the doctrine contained in the Twelth Article of Faith, "obeying, honoring, and sustaining the [tax] law." Of course, the financial repricussions of losing its 501(c)(3) tax-exempt status might also be a wee bit persuasive. Besides, the ADR plan is probably aimed at individual congregations, rather than a large centralized church. The LDS Church has the resources to defend itself in a court of law, but that doesn't make it any more likely to pick a legal fight.

Free Opinions about Same-sex Marriage in Law Schools

2008-09-09T12:55:00.000-07:00

Somewhat behind the times, I recently heard about an unusual intersection between law school, free speech, and opponents of same-sex marriage. Various groups of law professors have threatened to boycott the annual American Association of Law Schools (AALS) law professors' conference in San Diego because Doug Manchester, the owner of one of the hotels in which the conference is to be held, has donated $125,000 to support California Proposition 8. That measure would amend the California State Constitution to define marriage as between a man and a woman, essentially overruling by referendum the California Supreme Court's In re Marriage Cases decision that was handed down earlier this year. The Legal Writing Institute went so far as to take the position that attending the conference in that hotel would violate its nondiscrimination policy.

As a significant proponent of California Proposition 8, the LDS Church has a fairly direct connection with this issue. Noting this connection and the inherent tensions it produces with the AALS boycott, George Mason law prof Ilya Somin writes:

The AALS is an organization that is supposed to promote legal education and academic research in a politically neutral way. Taking stands on controversial political issues such as gay marriage is inconsistent with the organization's mission of promoting a free exchange of ideas and education that includes a wide range of viewpoints. If the AALS has an official position in favor of gay marriage (which is what a boycott would amount to), it cannot be a credible neutral organizer of panels, conferences, and academic research on gay marriage-related questions. The same goes for taking positions on other political issues.

Moreover, if political opposition to gay marriage is so wrong that the AALS should forego any economic relationship with those who engage in it, how can it continue to have Catholic, evangelical Protestant, and Mormon schools as members? When it comes to promoting opposition to gay marriage, the Catholic Church and other religious organizations are much bigger players than Doug Manchester. I don't see how the AALS can shun Manchester as beyond the pale while keeping Notre Dame and Brigham Young as members in good standing.

It seems to me that the proposed AALS boycott is both inconsistent and inappropriate.This underlies a problem many LDS law students have faced during law school. The intellectual environment at law schools is not always as open to discussion as it ought to be, and this is particularly true with hot-button issues in the public debate. Noting this dilemma, University of Illinois law prof Larry Ribstein asks several probing questions:

What if Mr. Manchester didn’t contribute money to oppose same sex marriage cause, but supported it vocally? Of course contributions are a form of expression. Would or should these groups make a distinction between contributions and other expression of belief?

. . .

How would the boycotters feel about teaching students who opposed same sex marriage? (I note that the chair of one of the boycotting groups heads the legal writing program at a Catholic law school).

If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?

The bottom line is that I wouldn't be comfortable expressing that opinion in such a situation. That may be the status quo in law school faculties, but it would be even worse if such an approach was sanctioned by the law schools themselves. Jonathan Adler, blogger and law professor at Case Western Resrve University School of Law put it this way:

[I]t would be unconscionable for a purportedly academic association to endorse the view that opposition to the imposition of gay marriage by judicial fiat, in and of itself, constitutes "discrimination" against homosexuals and that such views are beyond the pale of acceptability within such an organization.

Here's the full analysis from the law professors of The Volokh Conspiracy.

The Law School Class of 2011

2008-09-04T13:24:00.000-07:00

As another class of 1L's enters law school, here's a salute to the class of 2011. Incoming LDS 1L's should remember to register at the JRCLS Student website.

Also, if any LDS law students are interested in participating/invigorating this blog, send us an email. LDSlawstudents at Google mail.

Survey for LDS Law Students and Undergraduates

2008-03-22T07:11:00.000-07:00

The following is a public service announcement on behalf of a group of BYU Public Relations students. They're doing some research on how students make educational decisions, especially how they decide which law school to attend. The quizzes are just 10 simple questions, so please take a moment to fill them out.

Take the LDS Law Students survey here.

Take the LDS Undergraduate survey here.

A Good Lawyer

2007-08-14T07:11:00.000-07:00

Here's a few thoughts on the legal life and work of President James E. Faust, who passed away last week at age 87.

A quote from President Faust in the Spring 2003 Clark Memorandum, p. 7:

The pursuit of justice is a very noble path, but obtaining justice is often very elusive …. In some ways a more noble effort is to resolve differences by being a peacemaker.

From his obituary in the Deseret News:

The son of an attorney and judge, President Faust gravitated naturally to a law career. After claiming a juris doctorate from the University of Utah Law School in 1948, he practiced law in Salt Lake City until his call as an Assistant to the Twelve on Oct. 6, 1972.

Public service was a notable element of President Faust's life during his professional career. He served as a Democratic member of the Utah Legislature from 1949-1951. He also served as an adviser to the American Bar Journal and was president of the Utah Bar Association in 1962-1963. He was also appointed by President John F. Kennedy to the Lawyers Committee on Civil Rights and Racial Unrest.

From an address to the BYU Law School on November 22, 1987:

The canons of ethics and the rules of court with which you must be familiar are helpful rules of conduct to abide by, but I have always believed that they are the lesser law. An attorney's own careful conscience and his own standards of high integrity ultimately ought to govern his conduct.

Trademarking the word "Mormon"

2007-04-01T08:47:00.000-07:00

Recently there has been some discussion about the Church trademarking the term "Mormon." In September of 2002, Intellectual Reserve, Inc. (a wholly-owned subsidiary of the LDS Church) filed with the U.S. Patent and Trademark Office to trademark the word. You can find the application at the USPTO site by searching for the serial number (#78977858). Alternatively, you can see a screen capture of the page here.

Although the application process has gone on for some time, its recent discovery in the "Bloggernacle" has caused somewhat of a stir. (See a few of the comments on this Sustain'd thread for some opinions.) The Church likely hopes that trademarking the term "mormon" will alleviate confusion between the LDS Church and other sects. However, as many have noted, the issue of enforcement may make a trademark impossible or overly onerous. The term "mormon" has been around for a long time -- since 1833, according to the trademark application. It is a common word used to describe not just a church, but its members, a well-known choir, and various other affiliated institutions.

If the Church were to successfully obtain a Mormon trademark, it could potentially have a cause of action against groups who use the term in a confusing manner. And in order to maintain the trademark, the Church would likely have to actively contact and request clarification of people using the term incorrectly. Many people have pointed out that the likely bad publicity from such a move may cause the legal tactic to backfire.

However, the trademark has not yet been issued, so it remains to be seen if Intellectual Reserve will go through with the process or the Patent and Trademark Office will award the trademark.

D&C as required reading in law school

2007-01-30T09:42:00.000-08:00

Over on Prawfsblawg, the group blog for several law professors, Paul Horwitz has a post up on teaching the "Mormon" cases in a Law & Religion class at Notre Dame. Horwitz thinks they represent a unique opportunity to look at the relationship between religion and politics. Says Horwitz:

[A]dding this material opens up a far broader set of questions, many of which have broader resonance both for the question of Free Exercise accommodation and for the relationship between religion and the state in general.

Interestingly, Horwitz quotes Wildford Woodriff's address regarding the Manifesto on polygamy, now contained in Official Declaration 1 of the Doctrine & Covenants. He says, "It seems to me that professors who teach law and religion ought to include the Revelation in their reading materials."

How to Balance Religious Beliefs and Public Service

2007-01-06T13:48:00.000-08:00

There is a lively debate going on over at the New Republic Web site (free registration required) between Damon Linker, author of The Theocons: Secular America Under Siege, and Richard Bushman, History Professor at Columbia University and author of Joseph Smith: Rough Stone Rolling. The discussion is lively, intelligent, and civil -- I recommend it to any interested parties. I was particularly intrigued, however, by a segment from Linker's initial article that sparked the debate. Towards the end of the essay, Linker says:

Article VI of the U.S. Constitution famously stipulates that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Though the Framers meant to prohibit a test compelling office-seekers to affirm a particular set of religious views, it makes sense to treat the proscription as applying negatively as well--as prohibiting a test that would exclude members of certain religious sects from holding office. In our time of heightened sectarian tensions--when devout believers and secularists increasingly perceive themselves to be stationed on opposite sides of a cultural chasm--it is crucially important that Americans remain committed to allowing every qualified citizen to run for public office, regardless of his or her religious views.
But defending the constitutional right of every qualified citizen to run for office is not the same as saying that a candidate's religious views should be a matter of indifference to voters. In the case of Mitt Romney, citizens have every reason to seek clarification about the character of his Mormonism. Does he believe, for example, that we are living through the "latter days" of human history, just prior to the second coming of Christ? And does he think that, when the Lord returns, he will rule over the world from the territory of the United States? Does Romney believe that the president of the Mormon Church is a genuine prophet of God? If so, how would he respond to a command from this prophet on matters of public policy? And, if his faith would require him to follow this hypothetical command, would it not be accurate to say that, under a President Romney, the Church of Jesus Christ of Latter-Day Saints would truly be in charge of the country--with its leadership having final say on matters of right and wrong?

Linker's argument, of course, should sound familiar to those acquainted with the debate before John F. Kennedy was elected president. But it presents an interesting and vital question that public figures must consider: to what extent, if at all, should personal beliefs govern political decisions? This is all the more important if we consider how personal beliefs affect the decisions of judges, something Richard Bushman alludes to in his response to the essay. And I would submit that ethical attorneys must also ask themselves the same question: to what extent should my personal beliefs affect my legal practice?

In his response, Bushman notes that, per the Church's Web site, "[e]lected officials who are Latter-Day Saints make their own decisions and may not necessarily be in agreement with one another or even with a publicly stated church position." Similarly, LDS judges and attorneys must make their own decisions which may not necessarily correspond exactly with Church positions.

Most Latter-day Saints involved in the law profession would probably agree that personal beliefs have a place in their practice, but the extent of its influence likely varies by person. Now that Mitt Romney has official declared his presidential candidacy, his balance of personal belief and public duty will doubtless be an issue of continued scrutiny. This gives each of us a chance to reexamine our own beliefs and the role they play in our profession.

My personal opinion is that religious beliefs can make attorneys more compassionate and conscientious legal advocates. However, I also believe that an attorney is beholden to the public and to the clients he or she represents, and that these obligations may temper or even supersede Church directives. At some point, every attorney must make his or her own decision regarding the balance of obligations. Now that his candidacy is official, former Governor Romney will try to convince the public that he has made the same determination.

Court rejects alleged LDS bias

2006-12-13T05:52:00.000-08:00

It is a well-known fact that a significant portion of the population of the State of Utah is affiliated with the Church of Jesus Christ of Latter-day Saints. That's what three inmates in the the Utah prison system tried to used to their advantage in a recent lawsuit against the Utah Board of Pardons and Parole. Three convicted sex offenders filed individual suits alleging that the parole board gave preferentialtreatment to sex offenders that were members of the LDS Church. The cases were consolidated before a district judge.

Last Friday, U.S. District Judge Tena Campbell rejected the inmates' arguments, stating: "The uncontroverted affidavits of each board member attest that religious affiliation or participation is not considered in making parole decisions. There is also no evidence that religion was a significant factor in the board's decisions regarding Plaintiffs."

We would hope that members of the Utah parole board, if they were indeed members of the LDS Church, would have the professionalism and ability to consider individual inmate circumstances without religious affiliation coloring their judgment. Opportunistic lawsuits by inmates are legendary, but exploiting the local prevailing religious beliefs to escape prison time is particularly undesirable and would set bad precedent.

For more information, see the article in the Salt Lake Tribune.

Pilgrim Law

2006-11-26T21:09:00.000-08:00

In honor of Thanksgiving, we look at one of the first "American" laws, the Mayflower Compact. As you can see, the Pilgrims saw no need to separate their faith from their legal agreements.

In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience. In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620.

J. Craig Williams of the legal blog May It Please The Court comments:

The document was signed by 41 of the 102 passengers, 37 of whom were Separatists fleeing religious persecution in Europe. This compact established the first basis in the new world for written laws. Half of the colony failed to survive the first winter, but the remainder lived on and prospered. Although the Mayflower is commonly known as America's first constitution, it's more of a covenant among the settlors [sic] to obey the people that will govern the colony.

But it was a start, and a start on the long road to 1776. We thank the Pilgrims for showing us road to democracy. They celebrated that auspicious beginning with a feast, welcoming the original Americans and everyone's family members. We can do the same again.

Blogging and Copyright

2006-11-03T09:17:00.000-08:00

Several prominent law bloggers have noticed a few over-zealous legal disclaimers on popular blogs and Web pages around the Internet. Most notably, the North Country Gazette made this disclaimer with regards to its content:

In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.

That's sort of funny, since forbidding reproduction sounds like "no use" rather than "fair use." As law professor and blogger Eugene Volokh noted, merely reproducing that statement would be a copyright violation if they were right. Thankfully, they are dead wrong. The administrators of the North Country Gazette eventually removed the notices and rewrote the site's Terms of Service.

Citing other Web sites and blogs is an integral part of blogging, and if bloggers really couldn't reproduce anything from other sites, it would eliminate half of what bloggers write about.

Law school limit admission options

2006-10-19T16:53:00.000-07:00

Several top-tier universities recently made headlines by publicly doing away with their early admission programs. Harvard was the first to make the change, saying that the early admissions program favored privileged students who didn't have to worry about financial aid. Princeton and the University of Virginia quickly followed suit. The trend has been replicated in several law schools: the top three law schools (Yale, Stanford, and Harvard) do not have early decision or rolling admissions policies. And the although the next four schools (Columbia, NYU, Chicago, and U. Penn.) have early decision, they do not offer rolling admissions. Other law schools in the top twenty do not have early decision or rolling admissions, and this approach seems to be catching on -- Vanderbilt Law School, which is ranked 17th, announced earlier this month that it would discontinue its early admission program.

While the equality and diversity interests recently cited by Harvard are unquestionably part of the equation, I can't help think that they would be unnecessary if law school tuitions were not so high. Top tier law schools can charge almost $40,000 a year, which can be difficult for under-privileged or middle class students. In fact, tuition increased 267% between the 1990 and 2005 school years. And with thousands of students vying for spots in those top law schools, the schools don't have to worry about filling the seats in the classroom. Eliminating early decision seems like a business decision more than a matter of equality. Wouldn't it be better for lower-income students if they could get a good legal education for under $100,000?

What the Warren Jeffs case is about

2006-10-04T08:58:00.000-07:00

Findlaw.com has a good article about the Warren Jeffs case. As you may be aware, the leader of the FLDS polygamist sect has been indicted on child rape charges. While many news outlets have plugged the case mercilessly ever since Jeffs was placed on the FBI's most wanted list, very few articles have accurately identified the legal issues. The Findlaw article correctly states that the case has little to do with polygamy, but everything to do with child rape.

The article is by Erik Luna, director of the Utah Criminal Justice Center at the University of Utah Law School. Luna discusses the legality of anti-polygamy laws, but he notes that the Jeffs case is not related to those issues. Most interesting for those interested in criminal law, Luna looks at the allegations Jeffs faces, and discusses some of the factual and legal defenses Jeffs may raise. The article is here.

Same-sex Marriage in Rhode Island

2006-09-30T05:59:00.000-07:00

Pajamas Media reported yesterday:

A gay couple from Rhode Island has the right to marry in Massachusetts because laws in their home state do not expressly prohibit same-sex marriage, a judge ruled Friday.

Wendy Becker and Mary Norton of Providence argued that a 1913 law that forbids out-of-state residents from marrying in Massachusetts if their marriage would not be permitted in their home state did not apply to them because Rhode Island does not specifically ban gay marriage.

Superior Court Judge Thomas Connolly agreed.

Prior to this decision, same-sex couples outside of Massachusetts could not get married in the state. Citing the 1913 law, Massachusetts Governor Mitt Romney had instructed clerks not to issue marriages to out-of-state same-sex couples. Couples from six neighboring states filed suit, and last march the Massachusetts Supreme Judicial Court ruled that residents of four of the states could not receive marriage licenses because of their home states' laws. However, the court sent the cases regarding New York and Rhode Island back for review. As you may remember, the courts in New York held last summer that marriage was between a man and a woman, but the Rhode Island courts reached an opposite outcome.

I see this as the inevitable next step in same-sex marriage litigation. And apparently, so did the Gay & Lesbian Advocates & Defenders, which represented the plaintiffs in this case. Their next moves will likely be the following: a same-sex couple from Rhode Island will get married in Massachusetts, and upon returning to Rhode Island, they will file suit to have the marriage recognized in that state. Currently, all the Rhode Island statutes contain language such as "bride" and "groom." One possibility is that the Rhode Island high court will rule along with the Massachusetts courts and decide that marriage in that state should include same-sex couples. However, a more likely outcome will be that the Rhode Island courts will hold such unions invalid, due to the Defense of Marriage Act of 1996 (DOMA). That act defines marriage as “a union between one man and one woman” (1 U.S.C. § 7) and prohibits any state or territory from recognizing any relationship between members of the same sex as marriage (28 U.S.C. § 1738C). The focus of same-sex marriage litigation will then turn to the constitutionality of the DOMA, which I fully expect to be struck down as violating th Full Faith and Credit Clause of the Constitution. Many people thought that nation-wide legalization of same-sex marriages was inevitable after the Massachussetts high court's decision in 2004, but not until the Rhode Island decision was the path to that inevitability so clear.

The Best Policy

2006-09-29T05:55:00.000-07:00

I caught part of the new show Shark last night, and I was rather annoyed with the characters' blatant dishonesty. It probably makes for more exciting television, but portraying crooked lawyers is old hack by now. I've met my fair share of shady defense attorneys, but none of them were so blatant (or stupid) as the young A.D.A.'s in the show. I think it's one more reason why the world needs more conscientious and ethical attorneys. Ironically, this was one of the Reuters headlines this morning:

SYDNEY (Reuters) - A law student who used taxis to escape with loot from dozens of house break-ins has been jailed after police in Australia caught him red-handed in the back of a cab fleeing his latest heist.

When not studying for a masters degree in law, Phillip Ryan See, 27, used his off-time to rob 43 houses in Sydney's plush harbourside suburbs, netting goods worth more than A$110,000 ($83,000), the Sydney Morning Herald newspaper said on Thursday.

See, who once worked as a legal assistant in a government law office, would load plasma televisions, cameras, jewelry and laptop computers into the boot of a taxi after each raid.

But when a surprised home-owner discovered See during a midnight burglary, police arrested the would-be legal eagle escaping in the back of another taxi.

During a search of See's flat, police found one of their own uniforms stolen during another break-in.

See was jailed for four years and nine months after the judge accepted he had a psychotic disorder.

I guess it's never too early to blow your legal career. Sometimes (read: all the time) honesty really is the best policy.

Plagiarism and Intellectual Property Rights

2006-09-22T14:06:00.000-07:00

Everything written since 1978 is copyrighted the moment it is put on paper or saved on disk. Even as I type this, my words are copyrighted. But how do those copyrights apply to work created as part of a school assignment? This is part of a new debate that has grown out of a Fairfax County, Virginia, school system new tactics to combat plagiarism. The school system now submits all student papers to a third-party company that maintains a database of student papers. The students' assignments are then checked against other students' work. The company, called Turnitin, has over 22 million papers in its database. However, as the Washington Post reports, not all students are happy about the idea.

Members of the new Committee for Students' Rights said they do not cheat or condone cheating. But they object to Turnitin's automatically adding their essays to the massive database, calling it an infringement of intellectual property rights.

The real question is whether the students surrender those copyrights when they turn in the assignments. But at McLean High School in Fairfax County, students refusing to have their papers entered into the database will receive a zero on the assignment. This, along with a "guilty until proven innocent" approach, raise some pseudo-due process issue. And the high school students aren't the only ones worried; the intellectual property caucus of the Conference on College Composition and Communication is debating these issue.

For those of us still in school, plagiarism is a constant issue with which university administrations constantly grapple. Most schools use tactics like honor code pledges and astute grading to prevent cheating, but the many resources available to students on the Internet are presenting new challenges to administrators. I think I might consent to having my work submitted to a database, but the idea of being forced to participate in such a program rankles me a bit.

The issue hasn't reach the stage of litigation in Fairfax, but a recent petition against the database system garnered 1,190 signatures. Sooner or later, school administrators are going to face a legal challenge to such practices and the courts will have to weigh in on the issue. In the meantime, a little honesty continues to go a long way.

Sustain'd

2006-09-20T15:10:00.000-07:00

Those of you who follow the myriad of social networking features now available on the Web will be familiar with community-driven Web sites. Members submit articles, usually by clicking on a button on the page or through a browser plug-in, and the most popular articles are aggregated on the community page. One such service is digg, with a little digging man logo and "digg this!" buttons on many Web pages.

Last month LDS blogger Connor Boyack decided the LDS Web community deserved its own community site. Boyack created Sustain'd, a digg-like service focused exclusively on content that would interest the LDS community. The Sustain'd icon, featuring a little man raising his right arm, plays on both the digg icon and the LDS tradition of sustaining Church members in their callings. Boyack has been working furiously to get Sustain'd ready by General Conference, and the word went out today that the system will go live this Friday.

I think this is a great idea. I really like using LDS blog aggregators (like LDSelect and Planet LDS, in the sidebar) to keep track of Mormon blogs, and I think Sustain'd will be an interesting addition to the bloggernacle. We'll try to get Sustain'd working on LDS Law Students when it comes on line, but in the meantime, check out Sustaind.org by clicking on the icon in the sidebar or read the Sustain'd blog.

Shadow governments

2006-09-17T19:41:00.000-07:00

In America, we normally think of governments as permanent entities. The government, particularly the federal government, seems as immutable as any other force in our lives. But for much of our country's history, the authority of the government was not a given. Aside from struggles between the federal and state levels, the authority of the federal government was frequently challenged up until the last century. One example in our cultural history is that of the Utah Territory. Despite the official governance structure established by the U.S. government, much of the actual governance in the territory occurred through Church-established channels. While the Utah "shadow government" ended prior to statehood, it is a fascinating part of Utah history.

Recently, I have seen some intriguing echoes of this phenomenon. One dramatic example is just south of our border, where presidential candidate Andrés Manuel López Obrador has rejected the election results that favored his opponent, Felipe Calderón. As the NY Times reported on Saturday:

More than 150,000 supporters of the losing leftist candidate for president flooded into the capital’s historic square on Saturday and declared him “the legitimate president” of Mexico.
As his supporters roared approval, the candidate, Andrés Manuel López Obrador, a former Mexico City mayor, vowed to set up his own government and to fight against “a band of white-collar crooks and corrupt politicians” who he has said stole the election from him.

A similar but more dire situation currently exists in Somolia, where the Western-backed government has been exiled to the inland town of Baidoa and an Islamist coalition of tribes has occupied Mogadishu.

Even in the U.S., some groups challenge the authority of the government in subtle but significant ways. One such way is minting alternative currency. The National Organization for the Repeal of the Federal Reserve Act and the Internal Revenue Code (commonly known as NORFED) makes a "currency" that competes with the U.S. dollar. LexisONE reports:

[NORFED] has been making the Liberty Dollar coins for eight years and claims $20 million is in circulation. The group says the money, unlike official U.S. cash, has a hedge against inflation because it is made almost entirely of silver and is backed by stocks of silver and gold in a vault in Idaho.

The coins are then spent by the group's 2,500 Liberty Associates in stores run by fellow supporters or are accepted unknowingly by clerks who are unaware they are not receiving real money.

The Justice Department has determined that use of Liberty Dollars, which come in varying denominations, "is a crime," according to the Mint, which issued a rare public warning Thursday."

The United States Mint is the only entity that can produce coins," Bailey says.

The Mint notes the coins share some resemblances to real money, such as the term "Trust in God" instead of "In God We Trust" and use of a torch in the design. Such similarities may confuse people into thinking the money is real, the Mint says.

But NORFED says it will challenge the government, arguing it has never claimed Liberty Dollars were official money and that it has a right to offer an alternative.

It appears that the spirit of prior "shadow governments" is alive and well in the United States, even if it does not manifest itself on same scale as other countries.

One more reason to live the Gospel

2006-09-12T13:32:00.000-07:00

NPR reports this morning about a false sex solicitation on Craigslist:

The men who responded to an Internet sex ad did not quite realize what they were getting into. The lonely woman who posted the ad wasn't a lonely woman at all. It was a graphic designer, who is now posting all the replies he received. The men's e-mail addresses and photos have been put online. Privacy experts say he didn't break any laws, although Craigslist -- an online service for classified ads -- says he did violate their policies.

I imagine Craigslist is referring to 7(h) of its Terms of Use, which prohibits the posting of information that "includes personal or identifying information about another person without that person's explicit consent." But other than getting kicked off Craigslist, I don't see much in the way of legal consequences for this enterprising young designer. While I don't condone his actions, the men who gave him their e-mail addresses and photos were extremely foolish. You don't have those problems if you don't respond to online sex advertisements. Sometimes the Gospel makes things simpler.

This incident is similar to the recent case of a hacker who seeded an online forum dedicated to child pornography with a Trojan horse virus. The program allowed the hacker to access the computers of the users who downloaded the Trojan. The hacker, who purportedly is from Turkey, then e-mailed the Montgomery, Alabama police department saying "I found a child molester on the Net." When the police asked for more details, the hacker gave the police information that lead to the arrest of Bradley Joseph Steiger, who was subsequently convicted for sexual exploitation of children and child pornography charges, and is currently serving a 17-year sentence. A year later the same hacker provided authorities information that led to the arrest of William Adderson Jarrett, a Richmond, Virginia man who plead guilty to similar charges and is currently serving a 19-year sentence.

From a legal standpoint, the Turkish hacker poses a problem: if he were in the U.S., it would be illegal. But U.S. law doesn't apply to him, so he can't be arrested. In fact, an FBI agent told the hacker by email: "[you] will not be arrested--that is a promise. You have helped to save at least two lives in the U.S. and [you] should be proud of that fact." So far, the convictions of the child molesters have held up: the 11th Circuit upheld Jarrett's conviction, and last month a U.S. District court judge refused to throw out Steiger's conviction.

The Judicial Nature of Church Governance

2006-09-11T09:27:00.000-07:00

Over on Times & Seasons, Nate Oman has an article about the governance structure of the Church. His assertion is that the Church's hierarchy is fundamentally judicial in nature, rather than administrative or pastoral. Oman, who teaches law at William & Mary School of Law, writes:

Read the Doctrine and Covenants on Church government, and what you will see is that most of the discussion about the offices of bishop or stake president have to do with judging. Indeed, in some ways the ur-institution seems to be neither bishopric, stake presidency, first presidency, nor even Quorum of the Twelve. Rather, it is the stake High Council. (Indeed, I believe that the High Council predates both the first presidency and the stake presidency, with stake presidents initially serving as presidents of the High Council, rather than as presidents of a separate quorum.) Furthermore, what the High Councils seem to have spent most of their time doing during the first three or four generations of the Church was adjudicating disputes between members. Early Mormons seem to have been a quarrelsome bunch (further evidence of post-Puritanism, perhaps?), and the ecclesiastical structure of the Church seems to have been largely about chandelling [sic] this litigious energy into priesthood-controlled fora.

Oman further opines that the judicial role of the Church has waned since the days of Lorenzo Snow, when the Church court system was transferred to the secular court system, and that some of the contributing factors to this change were the modernization and industrialization of the West. The full text of the article, with some interesting legal experience from LDS attorneys in the comments thread, can be found here.

A Presidential Conversation

2006-09-09T17:56:00.000-07:00

Over at Bloggernacle Times, John F. posted a small article about President Bush meeting with the First Presidency last month. President Bush spent 40 minutes speaking with President Hinckley & Co. in the Church Office Building. John F. wondered what they talked about, and a few people speculated about conversation topics in the comments thread. It's really more politics-related than law-related, but I thought it was so funny that I decided to reproduce the hypothetical conversations here. The first one is from John F.; the rest are from Jared* of LDS Science Review.

————————–

PoUS: “So, sorry about that whole forced migration thing and the Utah War.”

FP: “Yeah, ‘it was the largest forced migration in the history of America.’ That was sad but, in the end, we found a place safe for us — at least for a while.”

PoUS: “Well, it looks like you have a beautiful city here.”

FP: “Yeah . . . So, have you ever heard of the Book of Mormon?”

————————–

[silence]

PoUS: “Sooo, I hear you guys don’t drink.”

FP: “Nope.”

PoUS: “Me neither. I gave it up a few years ago.”

FP: “Good for you.”

————————–

PoUS: “Any idea what you’re approval rating is?”

FP: “Well, we don’t want to be immodest…”

——————————–

PoUS: “Do your people belly-ache as much as mine?”

FP: “Probably not as much. Gay marriage seems to get them going, though.”

PoUS: “Oh, I totally know what you mean.”

———————————-

PoUS: “…I told them to stop being close minded–I am the president of all Americans. So I deleted Mormons from the “axis of evil” list.

FP: “We appreciate that.”

Law School Cartoon

2006-09-07T06:28:00.000-07:00

Today's Foxtrot comic strip has a nice little dig at law school. The boy in the strip may indeed have a legal career ahead of him; in the last frame he seems to be launching into negotiations for terms of settlement.

New look

2006-09-03T19:31:00.000-07:00

Here at LDS Law Students we've made the official switch over to Blogger Beta. We've kept most of the important stuff, and taken advantage of a few new features (such as post tags) that have been a long time in coming. We're also trying out the RSS feed option in the sidebar -- currently we're displaying headlines from News from the Church. Blogger Beta also has some nice features on the back end, including enhanced spell check for those of us who can't spell. Like the new look? Let us know what you think.

Fightin' Words: Yale Law Review is actually interesting

2006-09-01T09:45:00.000-07:00

Law reviews are rarely entertaining, but the most recent issue of the Yale Law Review features an academic feud reminiscent more of professional wrestling than scholarship. Yale Law professor Jed Rubenfeld recently wrote a book about his personal Unified Field Theory of Constitutional Interpretation. Minnesota Law professor Michael Stokes Paulsen reviewed the book in the Yale Law Review, and his review was less-than-favorable. (The title of Paulsen's article is "How To Interpret the Constitution (and How Not To)," and compared Rubenfeld's argument to the humbug Wizard of Oz hiding behind the curtain.) In the same issue of the Yale Law Review, Rubenfeld fired back . Looking down his nose, Rubenfled began his response with "I do not know Michael Stokes Paulsen or his writings." This apparently isn't true, since Rubenfeld and Paulsen debated at a Roe v. Wade conference at Yale in 2003. Nevertheless, this issue of the Yale Law Review is considerably more entertaining than usual. The fun starts here.

We want the money

2006-08-30T19:03:00.000-07:00

Here's a great case name: U.S.A. v. $124,700 in U.S. Currency. Yes, that's right, the "defendant" was money. The 8th Circuit just upheld a money forfeiture case in which authorities seized $124,700 hidden in a cooler of a Californian man driving a rental car in Nebraska. Emiliano Gomez Gonzolez was pulled over for speeding and consented to a search, which yielded the hidden cash.

This wasn't a criminal prosecution against the defendant, however -- the case was against the actual money. A drug-sniffing dog named "Rico" smelled cocaine on the money and in the rental car, and other circumstances were suspicious -- the man had lied to the police, among other things. So even though the man wasn't convicted, he's out almost $125 grand.

I've heard several times that a large percentage of U.S. currency has been involved in drug transactions, and may have trace amounts of illegal drugs on it. If this is true, a drug-sniffing dog could smell drugs on your money even if you are involved in a perfectly legitimate enterprise. So if you're planning in shipping large quantities of money across country, St. Louis University Law School professor Robert Goldman has this advice: "You better get new bills and try something other than a cooler."

Via NPR.

2L Advice

2006-08-24T06:50:00.000-07:00

We've been covering the flurry of law school advice that annually accompanies the beginning of the school year. However, we've only looked at advice for 1L's so far. Ian Best, author of the well-known law blog 3L Epiphany, is a recent grad of Ohio State University's Mortiz College of Law and has some salient advice for rising 2L's. Among other things, Best advises taking more credits your second your than your third year, and offers advice as to how you should begin to focus on your interests. Best's advice is sound, and his experiences are a little more recent than that of the law professors that normally dispense law school advice. You can read Ian Best's advice for 2L's here.

To get hired, look honest

2006-08-23T12:11:00.000-07:00

Here's some research that could help you out in your interviews with firms this year:

Princeton University psychologist Alex Todorov has found that people respond intuitively to faces and come up with a snap judgment about a person's trustworthiness, likeability and character in a few milliseconds, far faster than our reasoning minds can come to a conclusion.
Since 2005, Todorov has conducted a number of studies on first impressions and found that individuals draw conclusions about another person's character within milliseconds. In one study, Todorov found that a politician's winning margin in an election correlated to how competent they tended to look.
In a recent study, 200 individuals were asked to look at 66 different faces for one of three time durations--100 milliseconds, 500 milliseconds or a full second--and then asked to judge the person's character. The study found that people didn't change their mind if given more time to observe. Instead, the longer viewing period just reconfirmed the snap judgment. Granted, first impressions can be overcome, but it takes work.
"The link between facial features and character may be tenuous at best, but that doesn't stop our minds from sizing other people up at a glance," said Todorov, an assistant professor of psychology in a prepared statement. "We decide very quickly whether a person possesses many of the traits we feel are important, such as likeability and competence, even though we have not exchanged a single word with them. It appears that we are hard-wired to draw these inferences in a fast, unreflective way."
Via CNET News.com

So forget those practiced answers or researching your interviewer's background -- apparently the best thing you can do in an interview is "look" like a good employee. This begs the question: How do you look like you're willing to work 100 hours a week?

Law School Advice

2006-08-21T15:21:00.000-07:00

With law schools starting across the country, here's some decent advice for new law students. Most of the advice applies equally well to returning students.

Findlaw has a 10-point list of things to do for law school.

GW Law Prof. Orin Kerr has two simple pieces of advice: It's normal to feel lost, and go to your professor's office hours and ask lots of questions. Read more here.

Villanova Law Prof. James Edward Maule has a collection of six articles offering advice for 1L's.

Meanwhile, Michael O'Hear of Marquette Law School offers some different advice about feeling lost.

And from the student side of the Ivory Tower, Top Law Student offers this advice on commercial supplements.

Anonymous Lawyer

2006-08-16T13:31:00.000-07:00

Here's a bit of law-related levity: recent Harvard Law grad Jeremy Blachman recently released a book entitled Anonymous Lawyer, which is based on his popular blog by the same name. During his 2L year at Harvard Law School, Blachman started writing a blog purporting to be the blog of a hiring partner of a large firm in California. The blog gathered a significant following, largely because Blachman's writing was just plain funny. Some people thought it was nonfiction, although Blachman was later revealed as the author by the New York Times. Many real-life practicing attorneys identified with the fictional account of a lawyer in a big firm. Blachman landed a book deal and now Anonymous Lawyer is a book as well as a blog. The book is mostly new material, so if you've read the blog you can still check out the book. Ironically, Blachman has never lived in California (he hails from New York).

For more entertainment, check out the Web site associated with the book, AnonymousLawFirm.com. If you've ever seen a law firm's Web site, the spoof site is especially funny. Be sure to check out the podcasts; they're very funny.

Same-sex Marriage in Washington

2006-08-02T09:21:00.000-07:00

There have been several decisions on same-sex marriage in the past month. The most recent was last week's 5-4 decision in the Washington State Supreme Court that upheld a law banning same-sex marriage. Lower courts in that state had previously struck down the law. The most important thing to consider in that decision is that all the law needed in order to survive scrutiny was "some rational basis." That was not a high legal standard to meet. Justice Barbara A. Madsen wrote in the opinion that "Limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents." Two other justices noted that there was "a compelling governmental interest in preserving the institution of marriage."

The plaintiffs in this case could not prove that homosexuality was an immutable characteristic like race or gender. That is a separate and significant debate altogether, but in this case it prevented the plaintiffs from challenging the law on the basis of discrimination, which would have been a much more stringent standard than that of "some rational basis."

The dissenting justices sharply attacked the majority, accusing the other justices of tacitly allowing discrimination. Justice Mary Fairhurst wrote: ""The plurality and concurrence condone blatant discrimination against Washington's gay and lesbian citizens." Justice Bobbe J. Bridge said that under the majority's reasoning, "there would have been no Brown v. Board of Education."

I find the dissent's arguments completely unpersuasive, particularly Justice Bridge's tired reference to Brown v. Board. Many plaintiffs' groups try to link their causes to the landmark civil rights case in an attempt to claim moral legitimacy, but here the cases are not analogous. The decision did not "condone blatant discrimination," but merely upheld the law according to the applicable legal standard. In writing the opinion for the plurality, Justice Madsen noted that same-sex marriage could be legalized by means outside the judiciary. "We see no reason, however," she wrote, "why the legislature or the people acting through the initiative process would be foreclosed from enacting a the right to marry to gay and lesbian couples in Washington." While I would not support such an initiative or legislation, I agree with the court's ruling that the proper way for such a law to be altered or eliminated would be through the legislature or a public referendum, not through a "judicial end-run."

Church Preparedness Site Gets Exposure from an Unlikely Source

2006-07-26T12:32:00.000-07:00

With record-high temperatures sweeping across the country, blackouts have hit areas such as Southern California, New York City, and St. Louis. Glenn Reynolds, a well-known blogger about law and politics on Instapundit.com, had a discussion about disaster preparedness, and talked about the types of things you would want to put in an emergency preparedness kit. Among other online resources Reynolds cited was the Church's Provident Living Web site. As Reynolds commented, Mormons "take this subject seriously."

Cohabitation in America

2006-07-24T10:34:00.000-07:00

Two recent articles have focused on the legal consequences of cohabitation. While the Church continues to stress the importance of marriage and family, societal trends in America continue to diverge from this view. One article at lawyers.com notes:

America has experienced a sharp increase in the rate of cohabitation. According to U.S. census data unmarried couples living together increased 72 percent between 1990 and 2000. Moreover, according to the lawyers.com survey results, younger adults are more than twice as likely as their older counterparts to have lived with a romantic partner without a marriage license. Many Americans between thirty-five and forty-four years old (56%) have cohabitated. Less than one-in-four (23%) people over fifty-five have done so.

Aside from the moral, social, or religious implications of widespread cohabitation, there are significant legal implications as well. In that same article, Cleveland-based lawyer Alan Kopit notes that cohabitating couples frequently lack the same legal protections enjoyed by married couples. Kopit asserts that documents such as cohabitating agreements and powers of attorney are especially important for these couples. However, despite the benefits, cohabitating couples seem reluctant to enter into any sort of legal agreement, as Kopit notes that these legal tools are "widely underutilized."

In a similar vein, a state judge in North Carolina ruled that a 201-year-old law prohibiting cohabitation was unconstitutional. The law, which was rarely enforced, was challenged by the American Civil Liberties Union. The ACLU acted on behalf of Deborah Hobbs, who said she had to leave her job because she refused to marry her live-in boyfriend of three years. In his ruling, State Superior Court Judge Benjamin Alford cited the 2003 Supreme Court case of Lawrence v. Texas, which struck down the state's anti-sodomy statute. Jennifer Rudinger, executive director of the ACLU of North Carolina, released a statement saying that "the idea that the government would criminalize people's choice to live together out of wedlock in this day and age defies logic and common sense."

I'm not sure that I would support legislation criminalizing all acts I consider "wrong." Everyone has his or her own agency to make decisions for his- or herself, and I don't think all "wrong" or "immoral" acts should carry legal punishments. But I think that the statistics cited in the lawyers.com article and the statement made by Ms. Rudinger are indicative of how little American society values the institution of marriage. Is it any wonder, then, why Church leaders continue to emphasize marriage and the family?

Summer Associate Positions - Not Just All Play and No Work

2006-07-02T18:30:00.000-07:00

The Wall Street Journal ran an interesting article last week about the changing landscape of summer associate positions. While the parties and the lunches are still part of the experience, many summer associates are starting to demand (gasp!) actual work. The article is available here if you have a subscription to the WSJ Online. Here is a segment of the article:

[T]hese days, summer associates at many firms are actually getting a little more training and a little less big-scale entertaining. Today’s summer associates “don’t seem to want more lavish entertainment or more parties,” says Chris Dusseault, the national chair of the summer-associate program at Los Angeles-based Gibson, Dunn & Crutcher. They’re “telling us they want real training, real projects, real exposure,” he says.

There are certainly things about the summer-associate programs – internships mostly for students between their second and third years of law school – that have stayed the same through the years. They still represent the main pathway for joining the world of big law firms. Most summer associates still get offers to come back and be real lawyers after they graduate. And they’re still paid well (at the biggest firms in New York, the going rate for 2006 is around $2,800 a week, before taxes), fed well and generally told not to worry about their billable hours.

But changes in the marketplace have led to a new I-wanna-work attitude among some summer associates. With partnerships increasingly elusive, law students are focusing more on the experience they’ll get at a firm before they eventually leave it. “Associates understand that they’re responsible for the trajectory of their careers,” says Sheri Michaels, senior managing director with the New York office of Major, Lindsey & Africa, a legal search firm. “It’s no longer, ‘Till death do us part.’ ” In addition, there’s a growing view that law schools don’t prepare students for the day-to-day realities of the practice of law, says Mary Gail Gearns, the national hiring partner at Bingham McCutchen in New York.

Summer associates are also savvier than their predecessors about what’s typically seen as the bait-and-switch nature of the summer program – 12 weeks of fun in the sun, followed by the long winter that is associate life. Thanks to Web sites like Greedy Associates, they have access to chatter about salaries, billable-hour expectations and which partners to steer clear of.

Law firms are also more than happy to provide their summer associates with more substantive training. Pittsburgh-based Buchanan Ingersoll three years ago beefed up its mentoring efforts for those students whose midsummer evaluations show they need help. “Its’ what the students have begged for,” says Greg Miller, the chairman of the firm’s recruiting committee. “And there’s nothing better than seeing a student really improve during the second half of the summer.”

Personally, while I wouldn't turn down a few lunches at a nice restaurant, I'm really looking for experience. I want to know what to expect if I go with the firm. I interviewed with one firm last Spring where the associates said they worked the same amount as they did during their time as summer associates. For me, that was a big selling point for the firm. With the demands of family, church callings, and other personal endeavors, I want to know up front what I'm getting into when I join a firm. Apparently, I'm not alone.

2006-06-19T09:43:00.000-07:00

The Professional Thought for the Month of June is by Judge Thomas B. Griffith of the U.S. Court of Appeals for the District of Columbia Circuit:

Here is the insight I offer for you to consider. To build a community that extends beyond your family or congregation-and I believe we are compelled by our understanding of the Atonement of our Savior to do just that-involves the law. Properly understood, the highest and most noble role of a lawyer, then, is to help build communities founded on the rule of law. By doing so, lawyers are participating in the redeeming work of the atoning power of the Savior at its zenith. To be sure, the working out of the power of the Atonement occurs initially at the intimate level of a sinner realizing her individual need for God's grace. But it must also ultimately include creating a community based on the rule of law.

The rule of law is the idea, of staggering importance in the progress of humankind, that a community should not be organized according to the principle that might makes right. Rather, a community and its laws should reflect the reality that each person is a son or daughter of God and by virtue of that fact alone is entitled to be treated with dignity, respect, and fairness. The most famous and influential expression of this radical idea came from the pen of Thomas Jefferson, Virginia's greatest son and the founder of my other alma mater:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Thomas B. Griffith, “Lawyers and the Atonement”, Life in the Law, p. 236

The Other Marriage Amendment

2006-06-08T12:27:00.000-07:00

While much of the nation was focused on the debate in the U.S. Senate over a constitutional amendment to ban same-sex marriage, a similar debate has gone largely ignored at the state level. Just one day after the U.S. Senate rejected a federal marriage amendment, a similar amendment proposal for the Tennessee State Constitution was heard before the Tennessee State Supreme Court. The American Civil Liberties Union of Tennessee and other groups brought suit claiming that notice of the proposed amendment had not been published six months before the General Assembly was elected as required by law. A Davidson County Chancery Court rejected the ACLU’s argument earlier this year, and the case was fast-tracked to the Supreme Court so a decision could be delivered before November.

While supporters of the proposed amendment criticize the ACLU for challenging the amendment on technical rather than substantive issues, the issue of notice is very interesting. I spoke with several of the plaintiffs’ attorneys earlier this year after the Chancery Court decision. Melody Fowler-Green, attorney for the ACLU, explained that there is very little case law on what constitutes notice in Tennessee. Yesterday each side made compelling arguments with respect to how notice should be determined.

In Tennessee, an amendment to the state constitution must be passed by two consecutive General Assemblies. Each General Assembly has a term of two years, so the amendment process takes about four years. After it is passed in the first General Assembly, the proposed amendment must be published at least six months before the election of the second General Assembly so voters can have time to find out how their representatives would vote on the issue. This amendment was not passed by the first General Assembly until May 19, 2004, less than six months before the elections of the second General Assembly on November 2, 2004. The plaintiffs contend that this did not give them enough time to campaign against the amendment. As Ms. Fowler-Green told the court,

“It's the ACLU's position that in order to be an adequate check on legislative power and to provide meaningful notice to the people of Tennessee, that the publication must be an official act of the state with the intent and purpose of notifying them of the specific proposal.”

At first reading, the ACLU’s case seems simple and persuasive. The amendment wasn’t passed until less than six months before the election, and therefore failed to meet the notice requirements. However, the state pointed out that there was substantial media coverage of the proposed amendment after it was introduced on March 17, 2004. Attorney Byron Babione argued before the court yesterday that the plaintiffs were well aware of the amendment before the deadline rolled around, since the media coverage far exceeded the public notices that accompany most amendments. And Deputy Attorney General Gina Barham pointed out that the state constitution does not require that the measure be passed before it is publicized.

I think the ACLU has a stronger case with respect to the notice requirements. As we are often reminded by the U.S. Congress, legislation can change at the last minute. The proposed measure that was first introduced may be substantially different from the measure that was ultimately passed. While the media coverage undoubtedly made the plaintiffs aware of the proposed amendment, I don’t know if the publicity was sufficiently accurate to constitute constructive notice. However, I have a hard time seeing how the plaintiffs can claim they were harmed by the shorter time period between passage of the amendment and the next elections. As Mr. Babione argued yesterday, I don’t think the plaintiffs have standing because they weren’t substantially harmed by late notice. When I spoke to Ms. Fowler-Green and her colleagues, they acknowledged that they were aware of this proposed amendment long before it was passed. And I think the plaintiffs failed to show how their campaign or legal strategies were altered or harmed by the actions of the legislature.

Articles:
"Technicality could delay marriage amendment" from The Tennessean
"Justices hear arguments on gay marriage amendment" from The Knoxville News Sentinel

Law School Admissions Go Down as Economy Goes Up

2006-06-06T07:01:00.000-07:00

Last year Karen DeMeola, assistant dean of admissions at UConn School of Law, predicted that law school applications would go down this year as the economy picked up. Sure enough, law schools across the nation are beginning to report smaller numbers this year. This continues the trend reported in the National Law Journal last year, based on reports from 19 of the nations top law schools. James Smoot, dean of the University of Memphis School of Law, reported last month that admissions at his school are down 6.6 percent from last year. Smoot notes that graduate and professional programs have more applications when the economy is down because further education becomes more attractive to undergraduates than entering the workforce.

This is good news if you’re planning on applying for law school. In general, it should increase your chances of getting into the school you want. The past few years have seen incredibly high numbers of applicants at law schools all over the country. I’ve long noted that law school seems like a Plan B for a lot of people who don’t know what they want to do with their lives; hopefully that trend will decrease as well as more employment opportunities open up for undergraduate degree holders.

Marriage - Guiding Principles

2006-06-04T20:17:00.000-07:00

Last February, during the Worldwide Leadership Training Meeting, Elder David A. Bednar gave an excellent address entitled "Marriage Is Essential to His Eternal Plan." As the debate over a federal same-sex marriage amendment heats up in Washington, it's bound to get ugly. I thought it would be nice to remember the guiding principles based on an eternal perspective. Here is a bit of Elder Bednar's talk that is relevant:

"More recently the devil has attempted to combine and legally validate confusion about gender and marriage. As we look beyond mortality and into eternity, it is easy to discern that the counterfeit alternatives the adversary advocates can never lead to the completeness that is made possible through the sealing together of a man and a woman, to the happiness of righteous marriage, to the joy of posterity, or to the blessing of eternal progression.
"Given what we know about our enemy’s intent, each of us should be especially vigilant in seeking personal inspiration as to how we can protect and safeguard our own marriages —and how we can learn and teach correct principles in the home and in our Church assignments about the eternal significance of gender and of the role of marriage in the Father’s plan."

Elder Bednar's address, as well as the entirety of the Training Meeting, is available on LDS.org. You can read the talks, listen to them, or watch through Windows Media Player.

Short-sighted: A Critique of Dale Carter's Argument Against a Federal Marriage Amendment

2006-06-03T14:23:00.000-07:00

Dale Carpenter, associate professor at the University of Minnesota Law School, published a revised article this week on the Cato Institute’s Web site arguing four major reasons why a federal marriage amendment. In his article, Professor Carpenter argues that even people who oppose same-sex marriage as a matter of public policy shouldn’t support the federal marriage amendment.

Carpenter cites several governmental safeguards that he claims remove the need for a constitutional amendment defining traditional marriage. Like most of his arguments, his points are accurate over the short term. But proponents of a federal marriage amendment are not concerned with defining marriage for the next five years. They seek to define marriage between one man and one woman permanently. Marriage amendment proponents oppose eventual recognition of same-sex marriages just as much as immediate recognition.

Carpenter argues that the structure of our government is well-equipped to deal with “judicial activism” from state courts, and that if any jurisdiction should recognize same-sex marriages, the issue should be dealt with within that jurisdiction. I see several problems with these arguments. First, marriage amendment proponents anticipate the possibility of federal courts recognizing same-sex marriages, not just state courts. Second, amendment proponents anticipate that same-sex marriages recognized in one jurisdiction may eventually be recognized in all jurisdictions. Carpenter doesn’t believe this is possible “in the foreseeable future,” but I think he’s being a little short-sighted in his predictions. Here’s how I see it could happen.

Most agreements or contracts made in one state are recognized in all other states through the Full Faith and Credit Clause of the Constitution. Under this doctrine, a same-sex marriage effected in Massachusetts would have to be recognized in any other state. However, as Carpenter points out, the Defense of Marriage Act of 1996 defines marriage as “a union between one man and one woman” (1 U.S.C. § 7) and prohibits any state or territory from recognizing any relationship between members of the same sex as marriage (28 U.S.C. § 1738C). Carpenter concludes that a constitutional amendment is therefore unnecessary and unwarranted, and same-sex marriage issues should be dealt with on a state-by-state basis.

However, I see the strong likelihood that the Defense of Marriage Act will eventually be struck down as unconstitutional. I am unaware of any major challenges to the DOMA, but it is only a matter of time.* Circuit courts have side-stepped the issue, but eventually they will receive a case challenging the DOMA on grounds that it violates the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause. While the latter two arguments are somewhat weaker, I think the Defense of Marriage Act could eventually be struck down. When that happens, same-sex marriages recognized by one state must be recognized by all, essentially granting de facto recognition of same-sex marriages in all jurisdictions. I think Carpenter is somewhat disingenuous when he claims that states are adequately equipped to consider same-sex marriage on an individual basis. States may be able to regulate this activity now, but it might not be long before state-by-state regulation becomes impossible.

Professor Carpenter’s arguments are interesting. I found his federalism arguments particularly persuasive. But I feel that his analysis is a little sloppy and short-sighted, particularly with respect to individual state regulation. Carpenter repeatedly asserts that proponents of a federal marriage amendment are worried about “hypothetical” cases. However, cases challenging the Defense of Marriage Act are real, and the circuit courts won’t dismiss them on technical grounds forever. Carpenter’s “short term” analysis is good for just that – the short term.

* Cases such as Smelt v. County of Orange and Mueller v. Commissioner of Internal Revenue were dismissed on grounds of standing and other technicalities and not on the merits of the cases. The only direct challenge to the DOMA is found in Wilson v. Ake, which was criticized in Smelt.

Update: For a critique of each of Carpenter's main points, see this article entitled "Law Prof's Paper Gets an F." I started to pick each point apart, but by the time I was done I had a couple pages of notes and I decided to just focus on the problem with scope.

More write-on advice

2006-05-04T05:43:00.000-07:00

Here's the rest of UCLA Law Professor Eugene Volokh's advice for the law review write-on competition. He has three more articles entitled:

Set up the right environment for the write-on
Review your professors' comments on your written work
and Why be on law review?

And for anyone suffering through Bluebook citation, George Mason Law Professor Ilya Somin suggests doing away with it altogether. Most 1Ls would probably agree.

Law review write-on advice

2006-04-27T05:13:00.000-07:00

Here's a helpful tidbit for the 1L's out there. UCLA Law professor and well-known blogger Eugene Volokh has posted the first in a series of tips on how to do well in write-on competitions. Most law schools have a writing competition after finals in the Spring to get on the law reviews the following year, and Volokh's advice is intended to help the first-years along. The article is available on his blog, The Volokh Conspiracy.

Featured Article - Integrity

2006-04-24T06:45:00.000-07:00

Every time final exams roll around, we get a talking-to about honesty, plagiarism, and cheating. While I certainly appreciate the reminder of our duties, I do think it is a little sad that such warnings are so necessary. In generally I think most law students are good people, but the intense pressure to succeed combined with a highly competetive environment make cutting corners look very tempting for many students.

It strikes me that this is a very short-sighted approach to life. I think most practicing attorneys would agree that good grades and a law degree from a prestigious institution won't do you much good if no one trusts you. In that spirit, the featured article this week "Integrity," by BYU President Cecil O. Samuelson. He's a doctor, not a lawyer, but the pressures of med school are very similar to those of law school. And as a president of a large university, he's not stranger to the issue of academic intergrity. The speech is available in html, pdf, or mp3. A few of my favorite exceprts are included below.

"I . . .believe that the attendant principles and practices of integrity are so important that all of us regularly need to think and act seriously on this topic. Although I am confident that you are in relatively high standing with respect to personal integrity, particularly when compared to the world around us, I am also persuaded that many of us overlook or fail to understand fully what it really means to have integrity in our lives."

"All of us are aware that we live in a general environment awash in moral relativism. Matters of honor, truthfulness, respect for others, and the like were often in the past understood to be hallmarks of an educated and cultured person . . .. In more recent years—when we have had increasing examples of moral, ethical, and legal lapses in those of prominent status and stature—the basic values related to integrity apparently seem to some to be old-fashioned and perhaps even outmoded at the practical level. Although we—at least I—may be old-fashioned, the issue of integrity with all of its facets is not related to a particular age, time, place, or circumstance."

Lawyers as Instruments of Peace

2006-04-09T15:01:00.000-07:00

Elder Robert S. Wood's General Conference address from last Sunday was particularly relevant to those of us preparing for the legal profession. Titled "Instruments of the Lord's Peace," Elder Wood spoke out against cynicism, hostility, and giving (and taking) offense. Sound familiar? I see a lot of that just about every day. Here are a few good quotes from the talk; it's available in html here.

"I have a friend who is a member of a political panel that is seen each week on national television. Explaining her role, she said, 'We are encouraged to speak before thinking!' We appear to be living in an era in which many are speaking without thinking, encouraging emotional reactions rather than thoughtful responses. Whether it be on the national or international stage, in personal relations or in politics, at home or in the public forum, voices grow ever more strident, and giving and taking offense appear to be chosen rather than inadvertent."

"Have we who have taken upon us the name of Christ slipped unknowingly into patterns of slander, evil speaking, and bitter stereotyping? Have personal or partisan or business or religious differences been translated into a kind of demonizing of those of different views? Do we pause to understand the seemingly different positions of others and seek, where possible, common ground?"

"President George Albert Smith observed, 'There is nothing in the world more deleterious or harmful to the human family than hatred, prejudice, suspicion, and the attitude that some people have toward their fellows, of unkindness.' In matters of politics, he warned, 'Whenever your politics cause you to speak unkindly of your brethren, know this, that you are upon dangerous ground.' Speaking of the great mission of the latter-day kingdom, he counseled: 'This is not a militant church to which we belong. This is a church that holds out peace to the world. It is not our duty to go into the world and find fault with others, neither to criticize men because they do not understand. But it is our privilege, in kindness and love, to go among them and divide with them the truth that the Lord has revealed in this latter day.'"

Good news for your debt

2006-04-05T19:20:00.000-07:00

Every law student is no stranger to debt. Sure, there may be a blessed few that manage to swing full-rides, but the average law student graduating from a private school has $76,763 in student loan debt. In my case, the number will be even higher. We're all hoping, of course, that we'll manage to earn enough to pay that off.

Well, the good news is that it just might be possible. First year salaries are increasing across the nation as other cities follow the trend set by firm in big cities like New York. Firms in those big-market cities are paying as high as $135,000. Here's the breakdown:

That's the good news. It's still not breaking even, however. Studies show that law students are paying 267% more for their education than they did in 1990.

To read more about increasing salaries or increasing tuition, click on the links.

Involvement in Public Policy Issues

2006-04-03T08:45:00.000-07:00

Remarks by Timothy E. Flanagan and Boyd J. Black
Reported originally in Meridian Magazine

Timothy Flanagan has firsthand experience in Washington political circles, having worked as counsel in the Bush White House. He said, "If you lined up people who have political influence against the wall, you would have a great many wonderful Jewish people. Do you know how many Latter-day Saints there would be? Only a few. There are roughly the same number of Jews in the U.S. as Latter-day Saints, but do we have the same political impact? I don't think so."

Brother Flanagan indicated that we have something to learn about how to have impact on public policy. He said, "Start simply with things that you are interested in, things that you know about. Start where you are by developing an affiliation for a political party. In our two party system, your influence is magnified if you attach yourself to a party. Just because somebody disagrees with you 20% of the time doesn't make him your enemy. He is your ally."

"Another important way to have impact is in political giving. The act of political giving is not an intrinsically dirty act. It is an act of expression of our principles. I'm willing to admit that our system is far from perfect and we have a great many problems as money touches politics. It is an observed fact that many Latter-day Saints view giving to candidates as something they just don't want to do. But we can build on a cornerstone of integrity. You bring to this process your principles and the world is hungry for those principles."

Brother Flanagan emphasized that the mark of any political work should be quality. "Too much of the effort that people put into political work is just shoddy. It is substandard. You will stand out if you put true quality into what you do.

Boyd J. Black, Associate General Counsel for the Church, answered the much-asked question, "How does the Church approach issues of public policy?" He said, "The Church's primary purpose is to invite all to come unto Christ. Only the First Presidency determines what issues the Church will be involved in institutionally.

"Officers are lobbied frequently to have the Church become involved in public policy issues, yet very rarely do they get involved. There are many worthy causes that the Church chooses not to be involved in. We try to be friends with everyone.

"More and more Church members are organizing on public policy matters. That is a good thing to work to stop the moral decline. However, in organizing on a collective basis, the guidelines are to seek a strong and broad base of leadership beyond the Latter-day Saints. In that way our effectiveness is leveraged and the chance of incorrect attribution of the group's actions to the Church is lowered.

"The Church attempts very hard to keep politically neutral. Silence by the Church should never be considered as endorsement."

Address by William F. Atkin

2006-03-26T15:48:00.000-08:00

From the J. Reuben Clark Law Society Conference in Washington, D.C.
Reported originally in Meridian Magazine

Associate General Counsel of the Church specializing in international affairs, William F. Atkin told about a visit he made to the Holocaust Museum in Washington D.C. It was a quiet day, with few people, and as he saw the gruesome story spelled out in such graphic detail, he began to feel a heaviness. It was unrelenting until he got to one of the last exhibits which told the stories of the rescuers, who though not Jewish themselves, had taken individual risk to save and shelter the persecuted people.

Researchers, he explained, had interviewed the rescuers to try to determine what distinguished them from the bystanders who had merely stood by. What was there about those individuals who risked their own lives to save another?

The most marked thing was that they had a personality type-what researchers called an altruistic personality. They cared not about themselves, but about others.

Brother Atkin said, "The same principle that would trample on the rights of the Latter-day Saints would trample upon the rights of anybody else. I may enjoy absolute freedom, but does everybody else in my community enjoy these same rights?

Addressing the attorneys he said, "We have been trained in constitutional principles, in legal systems and procedures. What are we doing to protect the right of religious liberty?

That is my call to action to us as Latter-day Saint lawyers. Do not be content that we have those blessings and liberties, if others don't. Be as concerned that others have religious liberties, and then we will always have religious liberties in our lives."

Brother Atkin quoted Joseph Smith, "The Saints can testify whether I am willing to lay down my life for my brethren. If it has been demonstrated that I have been willing to die for a ‘Mormon,' I am bold to declare before Heaven that I am just as ready to die in defending the rights of a Presbyterian, a Baptist, or a good man of any other denomination; for the same principle which would trample upon the rights of the Latter-day Saints would trample upon the rights of the Roman Catholics, or of any other denomination who may be unpopular and too weak to defend themselves." (DHC 5:498)

Religious Freedom - A Global Perspective

2006-03-18T15:43:00.000-08:00

by Michael K. Young, President of the University of Utah
From the J. Reuben Clark Law Society Conference in Washington, D.C.
Reported originally in Meridian Magazine

Michael K. Young has twice chaired the United States Commission on International Religious Freedom, which was designed as a watchdog group to propose ways in which the U.S. Foreign Policy could be better designed to advance freedom of conscience and religion around the world.

In that capacity he has traveled to many counties and sat in on sobering interviews with people who have been persecuted for their religion. These were people who had spent years in prison for daring to gather two or three people to pray together, Christians who had been despised and confined for wearing crosses, Muslims who had had limbs hacked off for what authorities termed were wrong practices or beliefs. They were from China, Viet Nam, Sudan - the places in the news where atrocities happen when people dare stand up for conscience' sake.

"What became clear to me," said President Young, "is that it is not accidental that freedom of religion is often called the first freedom. It is profoundly fundamental to people - how they define themselves in relation to the universe, to others and to their children. It is how they order their lives. The way a government is willing to respect religious freedom is the touchstone for defining the moral basis of a government.

"It is a powerful right to protect because it presupposes an allegiance to something higher than the state. It's like the canary in the coal mine. It is the first right that is nibbled around at the edges and then brutally attacked by governments when they feel insecure.

"Among the biggest problems we face is articulating human rights standards that are acceptable to people of a variety of faiths. One of the big failures of the academy is the unwillingness to take religion seriously as a political, economic and social force.

"When we lived in New York, I didn't want my children to walk down in Times Square and have them see things there that would make it more difficult to live their religion. We want to be able to live our lives consistent with our most deeply-held religious beliefs. The problem is where do you draw the line?

"Those are hard issues, but issues we only can wrestle with if we take seriously the matter of religion.

"The problem with freedom of religion is not that we take it too seriously, but that we do not take it seriously enough. We will have difficulty finding the answer to those questions if we don't credit it with legitimate discourse."

2006-03-10T15:35:00.000-08:00

Elder Cree-L Kofford - Opening Address
from the J. Reuben Clark Law Society Conference in Washington, D.C.
reprinted from Meridian Magazine

In the opening address of the conference, Elder Kofford said, "As Latter-day Saint attorneys we have some things to be aware of that are not true for other people."

Since he was speaking to attorneys, he said he'd put it in their language, "You've made contracts with the Lord over your life. First of all, you will remember that special day in a sacred place where in a solemn and dignified manner you committed to live the law of consecration." This means, he said, that you give all that you have and all that you are to the blessed sacred cause of the gospel.

"Each is entitled to individual inspiration to know what that means in our personal lives. One size does not fit all," he said. "His love and compassion are such that there is room for each of us. He is willing to tailor to our own circumstances that which we have contracted to do."

"Many of the contracts you've entered into are multiparty. You knelt across an altar in a sacred place. If you are man, you said to a young woman and to your Father in Heaven that you would take her to be your sweetheart and wife for eternity. You promised her and you promised your father that you would cherish and protect her and you would accept her as an equal, full-voting partner. If you are a woman, you gave yourself to your husband. You said, I will sustain him, I will support him. I will recognize his responsibility to provide the sustaining priesthood authority in our home.

"You entered into additional covenants. Together as a husband and wife you committed yourself to multiply and replenish the earth... We understood there that in order to receive the blessings, we also contracted away various rights. You contracted away not to have children. You contracted away your freedom to use all of your time in your own selfish ambitions.

"Can you practice the law under those confines? Not only can you practice it, you can excel in it. You can reach the pinnacle of success in our profession and still do all that you have contracted to do. You must do so in recognition of your contract, for the moment you cease to recognize and obey the terms of your contract you cease to have the qualities that will make you an outstanding lawyer.
"How are we ever to compete with those who have no standards to which we have ascribed? How are we compete with those who can practice seven days a week, 14 hours a day? You are not more brilliant than they are. You can excel because you can have the power of revelation. In Doctrine & Covenants 88:67 we read, "And if your eye be single to my glory, your whole bodies shall be filled with light..."

"Light in other places is called pure intelligence," said Elder Kofford. "And that body which is filled with light comprehendeth all things."

"There were times when I would have failed but for the comprehension provided by the spirit," he said. "There isn't a man or a woman with experience in this room who hasn't felt that being filled with light and suddenly comprehending things that we otherwise wouldn't have comprehended.

"It will be with you as your whole life is turned to living in the way you have covenanted to live."

2006-03-03T07:51:00.000-08:00

Here's a report from Meridian Magazine on the J. Reuben Clark Law Society Conference last month:

LDS Attorneys Gather for First J. Reuben Clark Law Society Conference

by Maurine Jensen Proctor

Where in the world would you find a professional gathering of attorneys who, when they were talking about covenants and obligations, they meant the ones they owe to God? The answer is at a recent conference in Washington D.C., where more than 500 LDS lawyers and law students had signed up to meet at the Hotel Monaco and the Georgetown Law Center on Friday and Saturday, February 17 and 18, for the first J. Reuben Clark Law Society Conference.

Conference chairman Lew Cramer said that, far from detracting from the long hours so often demanded by the law, "We affirm the strength brought to the law by a lawyer's personal religious conviction. We have common obligations to serve and to elevate others and to become a growing source of righteousness."

In fact, the theme of the J. Reuben Clark International Law Society is "We strive through public service and professional excellence to promote fairness and virtue, founded upon the rule of law."

If all the attorneys of the world adopted such sentiments, lawyer jokes would soon dry up, but gathered here were LDS attorneys who want to make that a reality.

The J. Reuben Clark International Law Society has 8,000 members, including 60 student chapters. Obviously, law students do not have to have attended law school at BYU to belong. In fact, according to Lew, it is surprising how many LDS students are in law schools all over the country.

Example: The law school at Creighton has 15 LDS students who belong to the J. Reuben Clark International Law Society.

In the past the LDS students have had conferences, but the LDS attorneys have only had a traditional Rex Lee Award and luncheon. The conference this year, according to Joseph Bentley, president of the group, marks the beginning of conferences that will be held every year.

Luncheon speaker was Alberto Gonzales, the Attorney General of the United States.

Other speakers at the event include an all-star lineup: Elder Cree-L Kofford, Emeritus Member of the First Quorum of Seventy; Michael K. Young, President of the University of Utah; William F. Atkin, Associate General Counsel of the Church; Gene C. Schaerr (who moderated a panel on being a great advocate); Timothy E. Flanagan, formerly with the White House and now General Counsel for Tyco International; Boyd J. Black, Associate General Counsel of the Church; and D. James Gordon, Associate Dean of the J. Reuben Clark Law School.

Law students at the Saturday conference heard from Thomas B. Griffith of the United States Court of Appeals for the D.C. Circuit; Richard L. Bushman, Gouverneur Morris Professor of History emeritus at Columbia University; Father Robert F. Drinian, former Dean of the Boston College of Law School; and Cheryl B. Preston, a law professor at BYU.

Featured Article - February 15

2006-02-15T15:15:00.000-08:00

Elder Lance B. Wickman, General Counsel of the Church and member of the Quorum of the Seventy spoke at the annual J. Reuben Clark Law Society Devotional on February 10, 2006. His address, titled "In Search of Atticus Finch," is available on the LDS Web site.

Featured Article - January 24

2006-01-24T13:18:00.000-08:00

The Rule of Law: An Interview with Judge Tom Griffith

from the Fall issue of BYU Magazine.

Thomas B. Griffith (BA '78) was confirmed June 14, 2005, by the United States Senate as a judge on the U.S. Court of Appeals for the D.C. Circuit. Griffith had spent the previous five years as assistant to the president and general counsel at BYU.

On July 1, 2005, as Griffith prepared to leave BYU and be sworn in as a federal judge, Edward L. Carter (BA '96) asked the new judge a few questions about his life, his experiences, and the American legal system. Carter is a BYU assistant professor of communications, a graduate of the J. Reuben Clark Law School, and a former law clerk for Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit.

Carter: You served as BYU general counsel and assistant to the president for five years, beginning in August 2000. What will you miss most about the job and what will you not miss?

Griffith: I will miss the daily association with the administration, faculty, staff, and students at BYU. This is a remarkable place.

What will I miss least? Budget meetings.

Carter: Given that you graduated from BYU and later served as assistant to the president and general counsel, what do you value and enjoy about BYU?

Griffith: I value most that BYU is trying to combine the life of the mind and the life of the spirit, and model for the world that those two spheres are complementary. They are not antagonistic. We, along with other religious colleges and universities, play a vital role in providing diversity in American higher education. There was a time in the history of Western civilization when the life of the mind and the life of the spirit were not seen as antagonistic. The highest and best expressions of the spiritual life were completely consistent with intellectual rigor. BYU is committed to the proposition that the life of the mind and the life of the spirit are not antagonistic. BYU and other religious colleges and universities are keeping that important idea alive.

Carter: What experiences did you have as an undergraduate student at BYU that made a difference in your life?

Griffith: I appreciated most having faculty and peers who saw no need to create false distinctions between the life of the mind and the life of the spirit and who modeled that to me. When I joined the Church as a junior in high school, I mistakenly assumed that my commitment to the Restoration would require that I put to one side the life of the mind. Because I was convinced that the Restoration had occurred, that was something I was willing to do. When I came to BYU, I discovered that not only is that not necessary but that it would be a mistake to do so. In the grandest traditions of the Restoration, discipleship and intellectual rigor are part of the same enterprise. Seeing professors and peers who modeled that was the greatest part of my BYU undergraduate experience—that and watching Danny Ainge play basketball and Gifford Nielson play football.

Carter: In what ways can BYU—through the J. Reuben Clark Law School and graduates who pursue legal careers—improve the justice system?

Griffith: I can think of three ways. First, produce lawyers who approach their responsibilities with intellectual rigor. Second, produce lawyers who approach their responsibilities with a commitment to the highest ethical standards of the profession. Third, produce lawyers who are committed to creating a community that cares deeply about those who have been pushed to the margins of our society, those who haven't yet reaped the full benefits of living in a society of constitutional government, the rule of law, and economic liberty. I would hope that lawyers trained at BYU, either as undergraduates or law graduates, would be deeply committed to looking for ways to care for those who have been left out or left behind—those the Savior refers to as the "least of these," but whom He also calls "my brethren" (Matt 25:40). I don't mean to suggest every lawyer out of BYU must work as a public defender or in a social welfare agency, although many should. The idea I'm referring to can be practiced by any lawyer, from the partner at the Wall Street law firm to the public defender.

Carter: You are the first BYU graduate to serve on the U.S. Court of Appeals for the D.C. Circuit. That court is sometimes referred to as the second-highest court in the country, and it has been a stepping-stone to the Supreme Court for Justices Vinson, Rutledge, Burger, Scalia, Thomas, Ginsburg, and Roberts. It has also been the judicial home of well-known judges such as Kenneth Starr, Robert Bork, Abner Mikva, and Skelly Wright. By my count, you are the 56th judge in the court's 112-year history. What are your feelings about the court, and what was your reaction when you first learned President Bush would nominate you?

Griffith: To be nominated by this president to this court is the highest professional honor of my life, and it is deeply humbling. I am aware of the history of this court and of the critical role that it plays in the federal judiciary. I have nothing but the deepest admiration and respect for those who have served on the court and those who serve there now.

Carter: The Barrett Prettyman U.S. Courthouse in Washington, D.C., where your new office is located, is about three blocks from the National Archives, where the U.S. Constitution is displayed. What has made the Constitution so enduring?

Griffith: In my view, there are at least two reasons for its success. First, the brilliance and inspiration of the Framers to create a system of limited government, separated powers, and checks and balances that created a foundation of principles that has set boundaries in the government yet has allowed sufficient flexibility between the branches of government to allow the Constitution to survive.

Second, the American people care about the Constitution. Notice how often the Constitution is invoked in our public debates. It has survived because great men and women throughout the nation's history have cared deeply about its meaning.

Carter: What is your greatest challenge as a federal judge sworn to uphold the Constitution?

Griffith: To uphold the Constitution. I think that it is interesting that one must take an oath of office before one is allowed to be a judge. Even though I have been nominated by the president, the Senate has now given its advice and consent, and the president has now appointed me, I can't assume the office of a federal judge unless and until I am willing to take an oath. That oath requires me to put to one side my own personal views about matters and instead to do my best to determine what the law is and then to apply that law impartially. That's the challenge of a judge, to put to one side personal views.

In my view, a judge in a democracy has a limited role. A judge is not there to determine what's the right thing to do, according to her sense of fairness or justice. The judge should not make new law. The judge must apply the law that has been made by the people through the Constitution, statutes, and regulations. A federal appeals judge must also apply the law established through the precedent of the circuit and the Supreme Court. The greatest challenge of a judge is to act within those carefully circumscribed limits.

Carter: What are your most vivid memories of your time as Senate legal counsel?

Griffith: My most vivid memories involve the impeachment trial of President Bill Clinton, although, I have to say, my entire time as Senate legal counsel was memorable. There were many interesting issues. We were involved in the line item veto legislation. In that matter I was able to work with the acting solicitor general, Walter Dellinger, and later the solicitor general, Seth Waxman. Being able to work with those two remarkable lawyers is something I will always remember. But the impeachment trial stands out because it was so unusual. This was only the second time in the history of the nation that a president had been impeached by the House of Representatives and put on trial in the Senate.

Carter: What lessons did we, as a nation, learn (or should we have learned) from President Clinton's impeachment in the House and trial in the Senate?

Griffith: I don't know that I can speak for the nation, but I can share lessons I took away. One is the importance of the rule of law in a highly charged political environment. In some ways, I had a very easy job during the impeachment trial because my position was not a partisan position. My job was to remind the political players involved that the rule of law applies to the process here; that the Constitution sets forth some bedrock principles regarding the impeachment process; that there were precedents that had been established in the Andrew Johnson trial and other impeachment trials involving judges and other federal officers. Out of those experiences the Senate had learned some lessons and created some precedent. My job as Senate legal counsel was to remind the Senate of the body of law that governed the process by which an impeachment should be conducted and to advocate to the Senate that they follow the precedent in this setting, which they did.

Carter: In 1996 Congress adopted the Line Item Veto Act, which gave the president the authority to cancel certain spending and tax measures after he had signed them into law. One day after the act went into effect, six members of Congress sued the Secretary of the Treasury and the director of the office of management and budget, contending the act was unconstitutional. In Raines v. Byrd, the Supreme Court held that the members of Congress did not have standing to challenge the act. As Senate legal counsel, you were counsel of record on an amicus brief arguing that the act was constitutional but taking no position on the issue of standing. What was at stake for the Senate and were those interests served?

Griffith: The Senate legal counsel can only go to court when directed to do so by a resolution of the Senate. As Senate legal counsel, I was representing the institutional interests of the Senate. I was not representing the interests of any member of the Senate or party in the Senate. In the line item veto matter, the leadership of the Senate directed us to appear and argue in support of the constitutionality of the Line Item Veto Act, but they did not give us any instructions or authority to address the issue of congressional standing. So we addressed only the merits of the constitutionality of the Line Item Veto Act.

Carter: You served in the legislative branch (as Senate legal counsel), in the executive branch (as an appointee to the Title IX Commission), and you now serve in the judicial branch. Many recent political battles have stemmed from the disputes about the appropriate balance of power among the three branches, and much has been made about the "unaccountability" of the judiciary. How do you view the role of the judiciary generally, and how would you describe the judicial philosophy of Judge Tom Griffith?

Griffith: I believe that life-tenured judges in the federal judiciary have a very distinct and limited role. They must avoid the temptation to make law or to substitute their own judgment about what is right in any given case for what the people have already decided through legislation or regulation or for what their courts and the Supreme Court have already decided in case law. The role of a judge is to apply the law to the dispute at hand and to avoid the temptation to substitute his or her personal views about what is right.

Carter: You have volunteered your time and expertise in various capacities, from representing a death-row inmate to serving on a federal commission to review Title IX. How do these activities relate to your statement in 2000 that "the highest and most noble role of a lawyer, then, is to help build communities founded on the rule of law"?

Griffith: They are my meager attempt to try to do that. I believe that lawyers in the United States have a special obligation because we are the direct beneficiaries of this remarkable nation and the success it has had. We, of all people, have a special obligation to give back what we can when we can to help build the community and strengthen it. Lawyers who are trained in how to think about legal issues and how to become advocates have an obligation to use those skills to try to figure out how to make the republic stronger and how to bring people into the community who have been left out. Most lawyers I know do that.

This story hasn't made it to popular culture yet, but it's true: lawyers use their skills to help build community, whether it's using their legal skills in pro bono activities, such as representing the indigent, or using their leadership skills to coach a softball team or work at a homeless shelter or a battered women's shelter. Lawyers have an obligation to do those things. My observation is that they do. I'm very proud to be an attorney, and I wince at the view that some in popular culture have about lawyers. I haven't met many lawyers whose lives are close to the stereotype of popular culture. The lawyers I have worked with care about their communities and work to improve them.

Carter: You are an advisor to the American Bar Association's Central European and Eurasian Law Initiative (ABA-CEELI), which was established in 1990 to advance the rule of law in Central and Eastern Europe and the former Soviet Union. What progress has been made in that regard, and what remains to be improved?

Griffith: Much progress has been made. ABA-CEELI and other providers of rule of law programs have been active in the region since the fall of the Berlin Wall and have been influential in helping these newly formed democratic states create societies based on the rule of law. Ukraine is a recent and dramatic example of that. There are many others. There are heroic men and women in that region who are, in my view, the modern-day Madisons, Jeffersons, and Washingtons for their own societies. They are interested in the rule of law, in reform, and in creating democratic societies based on limited government, individual liberties, and economic freedom. Because they are there, I have confidence that those countries will succeed.

There are great challenges remaining. The rule of law is a powerful idea, but it's also a fragile idea, even in the United States. The rule of law is a concept that must be kept alive and must be rediscovered by every generation. It's a fragile possibility. These newly formed democratic states in Central Europe and Eurasia have made great advances but there's much work yet to be done. Many of them were under totalitarian regimes for several generations, and the residual effect of that takes time to replace. They will do it because they have great citizens who believe in freedom. There are daunting challenges but fortunately there are many—not just in the United States, but throughout the world—to help in that endeavor.

Carter: What are the strengths and weaknesses of the legal system in America today? What particular segment of society, if any, is not particularly well served by the legal system?

Griffith: I believe that the American legal system, by and large, works very well. Obviously, we can always do better. One way in which our society can do better is in representing the indigent. When I joined a team at my law firm that was representing a death-row inmate who was indigent, I was surprised to learn first-hand some of the challenges that face indigent defendants. I had not had prior experience in criminal law. It was new for me to work with an individual whose life hung in the balance. I got a better sense from that experience of how important it is to get good legal representation to those who can't afford it because the consequences are so severe if the process doesn't work well.

Carter: By some accounts, the federal courts' caseload is too heavy, the costs of litigating in the federal system are too high, and the system takes too long to process cases. At the same time, the federal court system in America may be the most sophisticated and effective court system in the world. In your view, what are the biggest challenges facing the federal judiciary, and what are the success stories of the federal judiciary?

Griffith: That's a question that I would be much better prepared to answer when I have more experience as a judge under my belt.

Carter: You told a BYU–Hawaii audience in 2000 that Robert F. Kennedy was your boyhood hero. Why was he your hero?

Griffith: He was such a passionate and articulate spokesperson for those who had not yet experienced the benefits of full participation in American society. He was a spokesperson on behalf of the poor and the dispossessed among us. Although over time my political views differed from his, I have never forgotten his passion for the "least" among us. He spoke of the need for reconciliation in our nation. That moved me as a boy. It inspires me still.

Carter: Who is the federal judge, past or present, you admire most, and why?

Griffith: That's an easy one. I'm a Virginian. Every Virginian, and I think every American, admires John Marshall. Part of it is born of my Virginia roots, but it is also the great work he did in establishing the federal judiciary.

Carter: You and your family have lived in North Carolina, northern Virginia, and Utah. What have been the most important or memorable experiences and events for you, your wife, and your children? What types of activities do you enjoy doing as a family?

Griffith: We love the countryside. In Virginia, we lived in the foothills of the Blue Ridge Mountains, about 65 miles west of Washington, D.C. We lived among the woods on the side of the mountain and had a spectacular view. Susan and I enjoyed raising our family in that beautiful setting.

We also love living in Provo because we are huge Cougar fans. Having so many BYU sporting events nearby is wonderful. We like sports a great deal. We like to play them. We like to watch them.

As a family, we also like to talk about politics. And we love to talk about the gospel. We also go to church. Now that's not unique or distinctive, but most of our time is taken up going to church, and that is how we like it. When you're in the Mormon diaspora, your ward is really the center of your life. When I think of the years we lived in northern Virginia, I think of the remarkable experiences we had in our ward. We were in a small newly created ward, spread out over a large region. We had a diverse ward membership that spanned every economic strata and was racially and ethnically diverse. It was for us in many ways the Camelot experience of our lives. So, when you ask, "what do we do as a family?" that's what we do—we go to church and participate in the full range of church activities. That's what we like to do best.

It was a fascinating experience to live in that setting and be a partner in a major firm in Washington, D.C., and then Senate legal counsel. Those two worlds—professional and ward—were very different. Sometimes it would be jarring to go from one to another, but jarring in a good way because it reminded me that the Lord really does not care about position or prestige. He calls people to do different things and His interest and concern about what's happening in the Senate of the United States is no different than His interest and concern about what's happening in the lives of people who are disadvantaged and struggling with some of the basic issues of life. To go from one world to another in the space of a day was something that was helpful to me.

Carter: I understand that you joined The Church of Jesus Christ of Latter-day Saints during your campaign for student body president of Langley High School in northern Virginia. What did you learn from those experiences?

Griffith: Actually, I joined the Church as a junior in high school and I ran for student body president several months later.

Only rarely in my life have I found that being a member of the Church has put me at some sort of disadvantage in the eyes of other people. Generally, my experience is that when people have learned that I am a Latter-day Saint, they have thought better of me than they probably should have. I've been the beneficiary of the examples of other people.

I certainly felt that way as a Latter-day Saint at Langley High School. Some of my friends were curious about what would become of me. I think, and I hope, that they saw that becoming a Latter-day Saint was a good thing for me. I tried to persuade them that it would be a good thing for them. I was sometimes successful, and sometimes I wasn't. But I have never felt any disadvantage at being a Latter-day Saint.

I have learned that one can be a Latter-day Saint and not be afraid of being actively involved with other wonderful people of different faiths or no faith. Over the years, many of the finest people I ever met or associated with were not Latter-day Saints and many were not even believers in God. Some of those experiences helped me to understand that Latter-day Saints shouldn't fear being involved in activities with those who are not of our faith. In fact, I think our faith is enriched and our discipleship can become more meaningful as we get involved in the lives of those not of our faith. From my understanding, the period of gathering, physically removing ourselves from the world and living in isolation, is over. I believe that part of the reason the prophets want us to get involved is not only that we have something to offer to others, but also because they have much to offer us.

Carter: Federal judges' salaries are less than what some of their law clerks will make once they leave chambers and begin practicing at large metropolitan firms. There has been a longstanding effort to increase the compensation given to federal judges, but members of Congress seem reluctant to raise the pay of federal judges above their own. What should federal judges be paid?

Griffith: I'll take a pass on that one. The chief justice of the United States speaks for the federal judiciary on those issues, and he's better equipped to address that issue than I am.

Carter: You're at LaVell Edwards Stadium. It's BYU vs. University of Virginia. Who do you cheer for?

Griffith: BYU! No hesitation; it's not even close. Actually, I've been in a similar position. In August 2000, I had been assistant to the president and general counsel for BYU for only a few weeks when President Merrill J. Bateman invited me to go back to Charlottesville, Va., to watch BYU play the University of Virginia. I had the opportunity to watch the game with then-governor of Virginia James Gilmore. I was his guest in his box, and I was cheering for BYU, but respectfully, realizing where I was.

I think the Cougars fell behind by 21 points but rallied in the fourth quarter and won. By the end of the game I had lost much of my restraint and was involved in full-throated cheering for the Cougars. I made a deal with a member of the governor's staff who is a close friend. I said, "If UVA wins, I'll wear the UVA hat back to Utah. If BYU wins, you have to wear the BYU hat all the way home." I lost my BYU hat that day.

That is not even a close call. BYU, always.

Carter: What do you do for relaxation or fun?

Griffith: I run. I ride my bike. I play tennis. I watch Chris Matthews's Hardball show.

Washington Sex Abuse Case

2005-12-02T08:01:00.000-08:00

I overlooked this case over the week of Thanksgiving, but it was brought to my attention at the last local chapter meeting of the JRCLS. The Church was held liable for the sexual abuse of one of its members and the jury awarded the victims $4.2 million. The victims, two sisters, were molested by their stepfather and allege that an LDS bishop did not report it to the authorities until a couple years after he first learned of the abuse. Most notable in this case was the court's decision to treat the bishop as a social worker. In Washington, ecclesiastical leaders do not have a duty to report abuse but social service counselors do. The trial court allowed the jury to consider the bishop, and engineer at Boeing, to have acted as a social worker. This is one of the multiple points of error upon which the Church intends to appeal.

The story was carried by CNN, the Deseret News, the Seattle Post Intelliger, and the Washington Times.

LDS Law Student Conference

2005-11-02T13:47:00.000-08:00

The 3rd Annual LDS Law Student Conference will be held February 17 and 18, 2006 at the Georgetown University Law Center in Washington, D.C. This year's conference has the most exciting group of speakers yet, including Senate Minority Leader Harry Reid, D.C. Circuit Court of Appeals Judge Thomas B. Griffith, and former-congressman and Georgetown Law professor Father Robert F. Drinan. I encourage anyone interested to check out the conference's Web site. There is also a conference for attorneys that will be held before the student conference on Friday, February 17. LDS law students and attorneys should seriously consider attending the conference. I have heard both Judge Griffith and Father Drinan speak before, and both are fascinating and accomplished professionals.

To build a blog

2005-10-12T18:49:00.000-07:00

If you are an LDS law student and interested in getting a blog up as a discussion forum, way to meet friends, etc, then send me an e-mail.

Featured Article - October 3

2005-10-03T14:45:00.000-07:00

While not uniquely pertinent to LDS law students, almost every student has experienced filesharing in one form or another since Napster took the college campus by storm in late 1999. For future lawyers and members of the Church, the moral issues are particularly potent. The Tennessee Bar Journal featured a cover story about the Grokster decision in its October issue. David Moser's article is available on the Web in html and pdf.

John Roberts hearings preview

2005-09-07T16:55:00.000-07:00

Some interesting insight into the upcoming hearings for Judge John Robertson are offered in this Federalist Society paper. The Federalist Society is a conservative debating organization of law students and professionals, so the paper doesn't profess to be without bias. But it makes some interesting observations about previous hearings, and what we're likely to see in Judge Robertson's hearings.

The pdf version is here.

Update - 10 September: The New York Times' Supreme Court correspondant Linda Greenhouse has some predictions about the hearings as well. Read the article here.

Featured Article - August 29

2005-08-29T19:48:00.000-07:00

Although not an article specifically related to the law, Hal B. Heaton's address entitled "Truth" gets at the very heart of what the law attempts to interpret. Available in html or free download in pdf or mp3.

Featured Article - August 10

2005-08-10T20:20:00.000-07:00

How Do We Practice Our Religion While We Practice?
By Thomas B. Griffith
From the Fall 2004 Clark Memorandum

Last year I was asked to speak at a J. Ruben Clark Law Society in Portland, Oregon, as a last-minute fill-in replacement for Senator Gordon Smith, who couldn’t attend because he was participating in the senate’s debate over the Iraq War resolution. All agreed that his absence was excused. I knew that the audience would be bitterly disappointed to settle for me in the place of Senator Smith, and, wanting to lessen their disappointment to the extent that I could, I decided that I would take a stab at the topic he had chosen for the day, “How Do We Practice Our Religion While We Practice?” (Besides, I have been unable to find anyone who still wants to hear about the impeachment trial of President Clinton.) I found the exercise of addressing that topic to be helpful to me. I hope that you find it helpful to you.

Senator Smith’s question is, I believe, an acknowledgment that certain endeavors in this life entail greater spiritual risks than do others. Now, I realize that there are spiritual risks in all human activities, including church work. No less an authority than Screwtape himself observed, “Nowhere do we tempt so successfully as on the very steps of the altar” (C. S. Lewis, “Screwtape Proposes a Toast,” The Screwtape Letters [New York: Macmillan, 1961], 172). Remember the Lord’s warning to us in d&c 121 about the unrighteous use of the priesthood: “We have learned by sad experience that it is the nature and disposition of almost all men . . . to exercise unrighteous dominion” (d&c 121:39, emphasis added). Why, you may be surprised to learn that there are even spiritual risks that come in working at BYU!

It doesn’t seem to me to be a very controversial proposition that some professional activities expose our souls to greater risks than do others. I believe the Savior was warning us of this fact of life when He said, “I tell you the truth, it is hard for a rich man to enter the kingdom of heaven. . . . [I]t is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God” (Matthew 19: 23–24 niv). Thomas Jefferson was certain that farmers, by virtue of their unique economic activity, were better prepared than any of us here today to contribute in a positive way to a republican form of government. (See, e.g., Thomas Jefferson, Notes on the State of Virginia, “Query xix” [1787]:“Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. . . . The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body. It is the manners and spirit of a people which preserve a republic in vigour. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution.”)

Even our own church leaders have acknowledged that some careers lend themselves more easily to the religious life than do others. I remember attending the sessions of general conference at which James E. Faust and Grant Bangerter were first called to be General Authorities. Elder Faust noted that prior to his call, he had been a lawyer. He then remarked that since his call, he had been repenting of that (James E. Faust, “To Become One of the Fishers,” Ensign, January 1973, 81). Elder Bangerter, by contrast, noted that prior to his call, he had been a carpenter. For some reason, he said, he had not felt quite the same need to repent (William Grant Bangerter, “The People Who Influence Us,” Ensign, May 1975, 39).

In A Man for All Seasons, his play based on the life of St. Thomas More, the patron saint of lawyers and politicians, Robert Bolt contrasts the public life of Thomas More, a Christ-figure who is a lawyer (I know that must require a significant suspension of disbelief for many of you), with that of Richard Rich, a pathetic Judas-figure. At the opening of the play, we are allowed to overhear a spirited discussion at the house of More in Chelsea. More’s house had become a center of the New Learning taking hold in 16thcentury England. Rich is a hanger-on in this distinguished company, envious of the prominence of More, who is the most respected man in England and is soon to become Henry viii’s lord chancellor—the highest appointed office in the realm. Forgive my inadequate attempts at acting.

Rich: (Enthusiastically pursuing an argument.) But every man has his price.
More: No, no!
Rich: But, yes! In money, too.
More: (With gentle impatience.) No, no, no!
Rich: Or pleasure. Titles, women, bricks and mortar, there’s always something.
More: Childish.
[Robert Bolt, A Man for All Seasons 4 (1962)]

Rich then complains that despite his friendship with More he has been unable to find a political position. He wants More’s recommendation, which he is confident will be the key to unlocking the door that is blocking his ascent to power. More, knowing Rich to be a weak, self-centered man, refuses to recommend him to government office. Instead:

More: The Dean of St. Paul’s offers you a post; with a house, a servant, and fifty pounds a year.
Rich: What? What post?
More: At the new school.
Rich: (Bitterly disappointed.) A teacher!
More: A man should go where he won’t be tempted. . . . Why not be a teacher? You’d be a fine teacher. Perhaps—a great one.
Rich: And if I was who would know it?
More: You, your pupils, your friends. God—not a bad public, that. Oh, and a quiet life.
[Id. at 5, 6]

Rich rejects More’s suggestion that he be a teacher, and by the end of the play he loses his soul. Rich yearns for worldly power and prestige. Because More will not aid that pursuit, Rich turns to More’s enemy Thomas Cromwell, secretary to the king. Cromwell willingly appoints Rich to a series of government positions in exchange for Rich’s undivided loyalty. As you know, More’s refusal to support Henry’s declaration of himself ashead of the church in England—a stand born of his conviction that the Pope was the rightful successor to St. Peter as the head of the church—cost him his life. And it was the perjured testimony of Richard Rich, elicited by Cromwell at More’s trial for treason, that led to his death.
Upon hearing Rich’s perjury at that trial, a disheartened More knows that his fate has been sealed. Exercising his right to examine the witness, however, More responds:

More: I have one question to ask the witness. That’s a chain of office you are wearing. (Rich reluctantly faces More.) May I see it? (Norfolk, the presiding officer at the trial, motions Rich to approach. More examines the medallion.) The red dragon. (To Cromwell.) What’s this?
Cromwell: Sir Richard is appointed Attorney General for Wales.
More: (Looking into Rich’s face; with pain and amusement.) For Wales? Why, Richard, it profits a man nothing to give his soul for the whole world—but for Wales!
[Id. at 90, 91]

Now, for those of us who have rejected the advice of Thomas More and have gone places in our careers where we will be tempted, places worth far less than Wales (I’m of Welch ancestry, by the way), what are we to do to save our souls? I think that is a more blunt way to address the question posed by Senator Smith.
May I suggest that the answer to our dilemma—and by the way, I believe it is a dilemma—lies within a familiar passage of scripture describing an event from the last week of the mortal ministry of Christ, which may, by its very familiarity to us, have lost some power to guide our professional lives. Aptly, the answer to our dilemma comes in the Savior’s response to a hostile question put to him by a lawyer:

Then one of them, which was a lawyer, asked him a question, [testing] him, and saying,
Master, which is the great commandment in the law?
Jesus said unto him, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind.
This is the first and great commandment.
And the second is like unto it, Thou shalt love thy neighbour as thyself.
On these two commandments hang all the law and the prophets. [Matthew 22: 35–40 KJV]

Love God. Love your neighbor as yourself. These are the templates by which we should measure our professional conduct. This is how we are to practice our religion while we practice our professions. Is that unrealistic? It is difficult, to be sure, but it is only unrealistic if we have bought into Satan’s fictions about what is real and unreal. How does one go about living one’s professional life out of a love of God and neighbor—something we are not only called to do but commanded to do?
First, we must reject the tendency to place our professional and religious lives in separate compartments. The “at-one-ment” of Christ is intended to bring unity and wholeness to our relationship with God, to our fellow beings, and within ourselves. Years ago, as I was about to graduate from BYU with a bachelor’s degree, I attended a stake conference in the Provo Tabernacle. In a few months I would be entering law school at the University of Virginia, but I was by no means certain what I wanted to do for my life’s work. I was ready to be taught. Elder Eyring teaches that the primary way God speaks to us is through speakers at church (Henry B. Eyring, “Ears to Hear,” in Conference Report, April 7, 1985; or Ensign, May 1985, 76). Although we can each identify obvious limits to that principle, this was an occasion when I believe the Lord was speaking to me. Gene Dalton, who was on the faculty of BYU’s business school, spoke as a member of our stake presidency. President Dalton told the story of an Italian immigrant to America who, when he passed through Ellis Island in the early 20th century, recorded on his papers under the box marked “Occupation”: “I am a servant of God. I mend shoes.”

That anecdote reminds me of what Dorothy Sayers, the Catholic apologist, translator of Dante, and mystery novelist, wrote:

The church’s approach to an intelligent carpenter is usually confined to exhorting him not to be drunk and disorderly in his leisure hours, and to come to church on Sundays. What the church should be telling him is this: that the very first demand that his religion makes upon him is that he should make good tables.
Church by all means, and decent forms of amusement, certainly—but what use is all that if in the very center of his life and occupation he is insulting God with bad carpentry? No crooked table legs or ill-fitting drawers ever, I dare swear, came out of the carpenter’s shop at Nazareth. Nor, if they did, could anyone believe that they were made by the same hand that made Heaven and earth. No piety in the worker will compensate for work that is not true to itself; for any work that is untrue to its own technique is a living lie. [Dorothy L. Sayers, Creed or Chaos?, (New York: Harcourt, Brace, 1949), 56–57]

Now, that is a tall order, and it makes me feel about the same way that I feel whenever I hear the oft-used John Taylor quote about being accountable for those I might have helped had I been more diligent in my callings. Nevertheless, I believe that Sayers is correct when she recognizes that our professional work cannot be separated from our religious life. (By the way, I believe that President Taylor is also correct. Although I hope that the words of Mother Teresa quoted in general conference several years ago are also correct: “I know only two things about God’s judgment. First, it will be absolutely fair. Second, it will be filled with wonderful surprises.”) As Latter-day Saints, we understand that what Sayers is describing is part of the law of consecration. C. S. Lewis described that law this way:

Christ says “Give me All. I don’t want so much of your time and so much of your money and so much of your work: I want You. I have not come to torment your natural self, but to kill it. No half-measures are any good. . . .”
. . . The terrible thing, the almost impossible thing, is to hand over your whole self—all your wishes and precautions—to Christ. But it is far easier than what we are all trying to do instead. For what we are trying to do is to remain what we call “ourselves,” to keep personal happiness as our great aim in life, and yet at the same time be “good.” We are all trying to let our mind and heart go their own way—cent[e]red on money or pleasure or ambition—and hoping, in spite of this, to behave honestly and chastely and humbly. And that is exactly what Christ warned us you could not do. [C. S. Lewis, Mere Christianity (New York: Macmillan, 1943), 167–68]

A modern day apostle of the Lord Jesus Christ, Elder Boyd K. Packer, described the commitment he made to the law of consecration early in his life:

I knew what agency was and knew how important it was to be independent, to be free. I somehow knew there was one thing the Lord would never take from me, and that was my free agency. I would not surrender my agency to any being but to Him! I determined that I would give Him the one thing that He would never take—my agency. I decided, by myself, that from that time on I would do things His way.
That was a great trial for me, for I thought I was giving away the most precious thing I possessed. I was not wise enough in my youth to know that because I exercised my agency and decided myself, I was not losing it. It was strengthened! [Boyd K. Packer, “Spiritual Crocodiles,” New Era, January–February 1981, 29: emphasis in original]

Consecration is a lofty goal and I wish that I could tell you from my own personal experience how it may be attained. But I cannot. Still, I am convinced that unless we have that law firmly fixed in our mind as a principle by which we are currently bound, we will look short of the mark, cf. Jacob 4:4, and our professional lives will work at crosspurposes with our religious lives. In other words, we will not be practicing our religion while we practice our vocations. But how do we live the law of consecration here and now in this world? Do you remember how Elder Maxwell has described the frustration of following celestial traffic signs in telestial traffic jams? (Neal A. Maxwell, “Notwithstanding My Weakness,” Ensign, November 1976, 12). Aren’t our careers the ultimate examples of telestial traffic jams? I believe there is an important lesson to be learned from the life of Thomas More. Now, as you have already recognized, I am of the view that there are many lessons to be learned from More’s life, and I would heartily recommend to any of you to learn as much as you can about this man. In my estimation, the best biography of More was published in 1999. The author is Peter Ackroyd. His book is titled The Life of Thomas More [hold up book]. I own no stock in the publisher; nor do I have any relationship with the author.

More is fascinating for our topic because, unlike his good friend and fellow Christian humanist Erasmus, More rejected the life of the cleric and the life of the scholar, both of which Erasmus estimated to be more suitable to More’s deep spirituality. Instead, More, like most of us here, chose the life of business, politics, and the law. (The educators among us have chosen the better part, are immune from all weakness, and don’t need a lecture from me. Rather, I should be learning from them.) Yet More is, in my view, only a shade behind King Benjamin as a role model for the nonclerics and the nonscholars among us. More was a devout churchman whose piety was genuine. Each day he would spend much time in prayer, devotion, and the contemplative study of the scriptures. (He wore a hair shirt, too, but I wouldn’t recommend that.) More was a devoted family man who held daily devotionals and taught his children (five daughters and a son) virtue and the liberal arts. By the way, the education of his daughters was of equal priority with that of his son. His daughter Margaret was known throughout England as the most erudite woman of her day. More was widely respected as one of the finest lawyers of his time. Listen to this description of More’s approach to his profession, supplied by one of his biographers. Although it is not the ultimate lesson from his life that will help answer Senator Smith’s challenge to us, it is such a remarkable account that I couldn’t resist including it in my remarks:

To his clients [More] never failed to give advice that was wise and straightforward, always looking to their interests rather than to his own. [Remember President Faust’s conference address from the October 2002 general conference, “What’s in It for Me?”] In most cases he used his best endeavors to get the litigants to come to terms. If he was unsuccessful in this, he would then show them how to carry on the action at least expense. He was so honorable and painstaking that he never accepted any case until he had first examined the whole matter thoroughly and satisfied himself of its justice. It was all the same whether those who came to him were his friends or strangers . . . : his first warning was ever that they should not in a single detail turn aside from the truth. Then he would say: “If your case is as you have stated it, it seems to me that you will win.” But if they had not justice on their side, he would tell them so plainly, and beg them to give up the case, saying that it was not right either for him or for them to go on with it. But if they refused to hear him, he would refer them to other lawyers, himself giving them no further assistance. [Quoted in Gerard B. Wegemer, Thomas More: A Portrait of Courage, at 51, 52 (1995)]

A prayer he composed for lawyers captures the essence of his spiritual approach to his vocation, a vocation that he knew had power to do great good and great evil. “Lord, grant that I may be able in argument, accurate in analysis, strict in study, candid with clients, and honest with adversaries. Sit with me at my desk and listen with me to my client’s plaints, read with me in my library, and stand beside me in court, so that today I shall not, in order to win a point, lose my soul” (quoted in Ave Maria School of Law Applicant Information booklet, 2003).
In all these ways, we can and should emulate Thomas More, but there is one virtue in particular that made him the man for all seasons that he was. It is this virtue I believe is central to our effort to consecrate our professional lives to the Lord—to practice our religion while we practice our vocation. From his earliest days as an adult, Thomas More believed that the most effective way to put himself in a frame of mind where he could resist the temptations attendant to his profession was, in his own words, “to consider how Christ, the Lord of sovereign power, Humbled Himself for us unto the cross.” “Christ’s ineffable Passion,” More wrote, is “a strong defense against all adversity” (id. 25 [quoting from one of the earliest of More’s works, The Life of John Picus, in English Works of Thomas More, 360]).

In the film version of A Man for All Seasons, there is a poignant scene in which a physically spent Thomas More, dressed only in a tattered monklike robe, is kneeling in prayer in an anteroom adjacent to the courtroom where he is about to be tried for treason. He has spent more than a year imprisoned in the Tower of London. If you turn up the sound on your tv set and listen very carefully, you can hear More utter a prayer that includes the phrase “Sweet Jesus.” This private and soulful prayer before his public trial and execution reminds us of the Savior’s private and soulful prayer in Gethsemane before His public trial and execution. That scene in the film is an artist’s version of history. It is based, however, on good history, for in the final months of his life, during his imprisonment in the Tower, More was able to pay wholehearted attention to the topic that motivated him throughout his life, and it is the topic, I believe, that will help you and me most as we try to bring all areas of our lives—even our professions—under the Savior’s charge to love God and love neighbor as self.
During his imprisonment in the Tower, Thomas More wrote De Tristitia Christi, “a . . . meditation upon the ‘sadness’ of Christ; it is a commentary” upon the New Testament account of Christ’s suffering in Gethsemane (Ackroyd, 380). It was the premise of More’s final work, based upon a lifetime of experience and reflection and a mortal life that had known enormous professional success but was now ending in the Tower of London, that “nothing can contribute more effectively . . . to the implantation of every sort of virtue in the Christian breast than pious and fervent meditation on the successive events of Christ’s Passion” (Wegemer, 208–209).

What does this have to do with Latter-day Saint professionals in the 21st century? Can it possibly be that this Catholic saint from the 16th century has something profound to teach us about how we are to practice our religion while we practice our professions? I think so. To support my argument, I turn to a lesson from the life of the Prophet Joseph Smith I learned several years ago while teaching an early-morning seminary class in Church history in Leesburg, Virginia. We decided that we would look at Joseph Smith as an Everyman figure. In other words, we would look at the lessons Joseph learned as if they were lessons that each of us needs to learn as we improve our efforts to be disciples of Christ. As we followed the lessons Joseph learned under the tutelage of the Lord, we discovered something quite startling.

Joseph Smith learned a number of lessons that deepened his discipleship from the time of his first visions until he was prepared to organize anew Christ’s church on the earth. The last canonized revelation he received almost immediately prior to organizing the Church in April 1830 is set forth in D&C 19. In verses 18 and 19 of that revelation, the Savior took Joseph Smith (and takes us) back in time to Gethsemane and Calvary—the scenes of the most awe-inspiring events since the Creation. Here the Lord narrates a personal account of the suffering He endured so that we could gain access to the transforming and redemptive power of His atoning sacrifice.

Which suffering caused myself, even God, the greatest of all, to tremble because of pain, and to bleed at every pore, and to suffer both body and spirit—and would that I might not drink the bitter cup, and shrink—
Nevertheless, glory be to the Father, and I partook and finished my preparations unto the children of men.

It occurred to our class that the Lord was telling the Prophet Joseph (and us) that we should do nothing in His church, or I would argue, in our lives, without bearing in mind what the Father and the Son did for us in Gethsemane and on Calvary. We should carry on our vocations in light of this sobering yet joyous reality.
One of the distinctive features of the Mormon experience, one that is widely noted, has been our emphasis on community building. It shouldn’t surprise you then that one of the icons of our faith is the beehive. To be sure, Mormon communitarianism is, in part at least, a natural reaction to the persecution we have experienced and a predictable result of our exodus history. But our communitarianism, which was so threatening to 19th- and early-20th-century America, is also a reflection of our belief that although spirituality begins with allowing the effects of Christ’s atoning sacrifice and His awe-inspiring grace to heal the wounds that sin has inflicted upon our broken hearts, its most profound manifestation comes when we work to make the effects of the Atonement of Christ radiate beyond ourselves and our families to unite our communities. There are in the canon of the Restoration powerful insights into the link between the Lord’s Atonement and the imperative to build community. The work of community building is, I believe, the most important spiritual work to which Christians are called. It is a natural outgrowth of what Thomas More called “pious and fervent meditation on the successive events of Christ’s Passion” (Wegemer, 208–209). All other spiritual work is preparatory to this and therefore incomplete without this.

Two stories from the Book of Mormon make this point. The first is the story of the prophet King Benjamin, who worked to unite his people, people deeply divided by culture, language, class, and race. He had tried, without a great measure of success, educational reform, political reform, and legal reform (see Mosiah 1–2). It was only when he taught his divided people of the great unifying power of the at-one-ment of Christ that he was able to help them create a community. It was only by teaching them of their fallen nature—which reveals itself in the very breaches Benjamin was seeking to heal—and the atoning power of Christ’s suffering that Benjamin was able to achieve, for a season at least, unity among his people (see Mosiah 3–6).

The second story describes the post-resurrection ministry of the Risen Lord Jesus Christ to the Book of Mormon people. In that story the Risen Lord descends out of heaven in a foreshadowing of his Second Coming, and the people fall to the earth in worship. After teaching them about His suffering (3 Nephi 11:11), He commands each of the almost 3,000 people to come one by one and feel the wounds in his hands, feet, and side (3 Nephi 11: 14, 15). As one might imagine, this shocking and gruesome experience transformed them. In fact, those who were confronted by the physical emblems of his suffering form the core of a new Christ-centered society that for the ensuing 200 years is devoid of strife, malevolence, racism, and greed (see 4 Nephi 3, 15–17: “And they had all things common among them; therefore there were not rich and poor, bond and free, but they were all made free, and partakers of the heavenly gift. . . . And it came to pass that there was no contention in the land, because of the love of God which did dwell in the hearts of the people. And there were no envyings, nor strifes, nor tumults, nor whoredoms, nor lyings, nor murders, nor any manner of lasciviousness; and surely there could not be a happier people among all the people who had been created by the hand of God. . . . [T]hey were in one, the children of Christ, and heirs to the kingdom of God”). Significantly, we are asked to do the same each Sunday when we partake of the sacrament of the Lord’s Supper. We are commanded to have physical contact with the emblems of His suffering. The response of the people in 3 Nephi (“they did cry out with one accord, saying: Hosanna! [Save us, now!] Blessed be the name of the Most High God! And they did fall down at the feet of Jesus, and did worship him” [3 Nephi 11:16–17]) becomes the mark by which we measure the depth of our appreciation for the Lord’s sacrifice.

Now, what is so striking to me about these stories is that each highlights the idea that one cannot serve a God who has no personal needs in any other way than by working to unite His children. Each makes clear that it was the shared understanding of Christ’s role as Savior and Redeemer that formed the basis for creating a community. We learn from the story of Adam and Eve that Satan’s primary goal and his chief tactic are to divide God from humanity, Adam from Eve. The most cursory study of human history shows his relentless pursuit of that goal and his effective use of that tactic. Everywhere we see around us the carnage of his work. We are divided by sex, race, class, religion, and nationality, just to name a few. By contrast, the at-one-ment of Christ is a powerful force to overcome those divisions and create a bond of unity among humankind. To build a community that extends beyond family or congregation—and I believe we are compelled by our understanding of the Atonement of our Savior and especially those sources to which I just referred to do just that—involves law. Properly understood, then, the vocation of a lawyer is to help build communities founded on the rule of law. By doing so, lawyers are participating in the redeeming work of the atoning power of the Savior at its zenith. To be sure, the working out of the power of the Atonement occurs initially at the intimate level of a sinner realizing her individual need for God’s grace. But it must also ultimately include creating a community based on the rule of law. Near the close of his biography of Thomas More, Peter Ackroyd wrote, “He embodied law all his life, and he died for it” (Ackroyd, 400). That is a challenge worthy of each of us, especially those, like More, who have gained some awareness of the power of the Atonement of the Lord Jesus Christ. We should each, in the words of Thomas More, engage in “pious and fervent meditation on the successive events of Christ’s Passion” (Wegemer, 208–209).

When we do, at least two things will happen. First, we will begin to develop a sense of gratitude to God for the “shock of eternal love” expressed in the Atonement, and that gratitude will humble us before God (Eugene England, “That They Might Not Suffer: The Gift of Atonement,” Dialogues with Myself, 90). Second, we will begin to realize that Christ’s Passion was not endured solely for us, but that He suffered what He did because He loved those we encounter everyday in our lives as much as He loves us. In the words of C. S. Lewis,

It may be possible for each to think too much of his own potential glory hereafter; it is hardly possible for him to think too often or too deeply about that of his neighbour. . . . There are no ordinary people. You have never talked to a mere mortal. . . . Next to the Blessed Sacrament itself, your neighbour is the holiest object presented to your senses. [C. S. Lewis, The Weight of Glory, 18–19]

In the name of Jesus Christ, amen.

This talk was presented to the Salt Lake Chapter of the J. Reuben Clark Law Society at the Joseph Smith Memorial Building in Salt Lake City, Utah, on November 19, 2003.

Featured Article - July 25

2005-07-25T18:18:00.000-07:00

"Just War and the Book of Mormon," written by then-3L Harvard Law student Matt Astle. Available in MS Word format here.

Featured Article

2005-07-13T10:25:00.000-07:00

"On the Shoulders of Giants," an address by President Boyd K. Packer given February 28, 2004.
Available in html or in pdf.

Legal Primer on Same Sex Marriage

2005-07-12T19:16:00.000-07:00

In the interest of getting something up here, I've provided "A Legal Primer on Same Sex Marriage," written by Nate Oman from the Times and Seasons Web site. The original post can be found in its entirety with all subsequent comments here.

Lets start first with marriage. As a legal matter in the United States marriage is defined by state law rather than federal law. Indeed, the law of marriage varies from state to state with regard to issues such as the status of marital property and the permissible degrees of consanguinity (in other words, how close of a relative you can marry). The federal government is a government of enumerated powers. In other words, in theory Congress only legislates on issues related to one of the specific areas set forth in Article I of the constitution. In contrast, state governments have broad powers to regulate for the general welfare of their citizens. This is the “police power.” Marriage is regulated under the police power.

Every state in the union has a written constitution containing a bill of rights. Generally speaking, these state bills of rights contain provisions that more or less mirror the federal bill of rights – freedom of the press, freedom of religion, etc. – but there are some special provisions. For example, the Arkansas constitution guarantees to each citizen an “adequate education,” and the Utah constitution contains a prohibition on any church “dominating the state.” These state bills of rights can grant any rights that they wish so long as they do not conflict with a provision of the federal constitution. However, they apply only to the laws of the state. They have no legal effect on the laws of other states or on federal laws. Hence, while the states have a much larger grant of power than does the federal government, that power is limited by state bills of rights. Finally, the power of state governments are also limited by those rights under the federal constitution that have been deemed as applying to the state. For example, the First Amendment’s prohibition on the establishment of religion applies to state laws. The Seventh Amendment’s guarantee to trial by jury in civil cases does not apply to the states.

Proposition 22 was a state referendum that amended the California law governing marriage. Previously, the law made no reference to gender. Proposition 22 changed it so that it was clear that only opposite sex couples could be married in California. It did not amend the California constitution. Several same sex couples in Calfornia sued, arguing that the law violated their right to “the equal protection of the laws” under the state constitution.

The federal constitution and virtually all state constitutions contain some guarantee to “the equal protection of the laws.” Generally speaking, the words of in the state constitutions are not much more specific than that. The problem is to figure out what such a phrase means in actual practice. By and large, state and federal courts use the same method for analyzing this question, although there is no reason that state courts must follow federal interpretations of equal protection or vice versa. Here is how it works.

All laws create classifications. A law that says that the speed limit is 55 mph, creates at least two classes of citizens: those who drive less than 55mph and those who drive more than 55mph. The mere fact that a law classifies its citizens does not mean that it violates “the equal protection of the laws.” Rather, the courts will merely ask if the classifications created by the law has some “rational basis.” A rational basis need not be a good reason or even a reason that the court finds persuasive. There must simply be a showing that the law bears some relationship to some legitimate goal of the state government. Traditionally, rational basis review – under both the federal and the state constitutions – has been very deferential. Historically virtually all statutes challenged under the “rational basis” test have been upheld.

Now suppose that the law creates a classification on the basis of race or religion. For example, it says that black people must pay higher taxes. This law would almost certainly be unconstitutional under any state or federal “equal protection” clause. The reason is that certain classifications are deemed to be inherently suspect. The classic example is race, but others include ethnicity and religion. If a law draws lines based on race it will only be upheld if it one can show that it serves a vital and compelling government interest. In practice virtually no law can survive this test, and it has been saved as a kind of safety valve for truly extreme situations, such as laws forbidding the press from publishing troop movements during a battle.

Finally, there are certain classifications that burden fundamental rights. For example, imagine a law that imposed a tax on voting. Voter is not a suspect classification, and it is actually used in pretty unobjectionable ways such as in choosing juries. Hence, the tax on voting law would seem to fall under the rational basis test. Taxing is rationally related to the state’s legitimate interest in raising revenue, and the law would seem to be unobjectionable. However, the courts have said that even when a classification is not suspect if it burdens a fundamental right – such as voting – it will only be upheld if it serves a compelling government interest. In other words, classifications that burden fundamental rights are treated like racial or other suspect classifications.

Okay, now we apply this rather cumbersome framework to Proposition 22. First we ask ourselves whether or not the classifications the law creates have some rational basis. The San Francisco Superior Court concluded that they did not. In considered essentially two rationales. The first is that the law had a rational basis because it accommodated the deeply felt beliefs of Californians that marriage should be limited to a man and a woman. The court admitted that sometimes accommodating historical traditions and deeply seated beliefs could be rational basis for a law, but – while not being as a clear as it could be – the court held that mere moral disapproval could not supply a rational basis for the law. Next the court considered the argument that opposite-sex marriage advanced the state’s interest in procreation. Here, rather than holding that there was no legitimate interest in procreation, the court held that there was no meaningful connection between this goal and a law restricting marriage to opposite-sex couples, noting that fertility was not a condition of marriage.

In theory, the court could have stopped its opinion there, but it chose to continue. In next asked whether Proposition 22 rested on a suspect classification. It concluded that it did, in this case gender. Now under federal law, gender is not a suspect classification but occupies a sort of shadowy middle ground mainly defined by what Sandra Day O’Connor eats for breakfast. However, gender is a suspect classification under the California state constitutions – and under many other state constitutions. The court concluded that because the law restricted a persons’ ability to marry solely on the basis of the gender of the proposed spouse it classified on the basis of gender. In so doing, the court rejected the argument that because the law imposed perfectly symmetrical disabilities on men and women – men can’t marry men but women can’t marry women – it was not a suspect classification. The court relied on the rejection of a similar argument that had been made in the context of anti-miscegenation laws that had prohibited inter-racial marriage. Defenders of those laws had claimed that they did not discriminate on the basis of race because they applied equally to blacks and whites. State and federal courts across the country rejected this argument. Having concluded that the law classified on the basis of gender – a suspect classification – the court turned to the question of whether or not it was justified by a compelling state interest. Here the work had already been done. A law that lacks a rational basis, by definition cannot be necessary for some compelling state interest, since compelling state interests by definition are rational.

Finally, the court held that the law burdened a fundamental right, in this case the right to marry. In coming to this conclusion it rejected the claim that the fundamental right to marry included only opposite-sex marriage. Such a position was ruled out, the court reasoned, because it was based solely in the moral disapproval of the citizens. Analogously, in the anti-miscegenation context, the courts had refused to limit the fundamental right to marry to same-race marriages, despite the long tradition of anti-miscegenation laws. Because the classifications in the law burdened a fundamental right, the court went on, it may only be upheld if the state has a compelling interest, which it had already concluded did not exist.

The court’s conclusions in this case rested almost entirely on California law. The case will now be appealed to the California Court of Appeal. This court is required to hear the case. From there, either side can try to appeal to the California Supreme Court. This court, however, can decide to not hear the case if it so chooses. Hence, the legal arguments in California are far from over.