The future of the blog

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

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

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.


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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

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

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

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

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.