Elder D. Todd Christofferson to speak at next JRCLS broadcast
Earlier this year I bemoaned the decision to have Steven Covey speak at the annual J. Reuben Clark Law Society conference and broadcast. In my opinion, a Mormon business and pop culture figure had nothing unique to offer a group of LDS attorneys. The way I see it, good JRCLS speakers could include recognized legal figures (such as former Supreme Court Justice Sandra Day O’Connor, who spoke in 2008) or perhaps LDS general authorities. But ideally, a JRCLS keynote speaker would be an attorney who could also speak with authority about legal issues the Mormon Church currently faces. A good example is Elder Lance Wickman, the LDS Church’s General Counsel, who spoke in 2006. But Mormon pop culture is something I would rather avoid. I don’t want to see Steve Young as a speaker—unless, of course, he’s talking about his BYU Law degree.
Fortunately, next year’s speaker meets virtually all criteria. The JRCLS just announced that Elder D. Todd Christofferson of the Quorum of the Twelve will be the speaker, and I’m looking forward to it. While his title indicates his position in the LDS Church, Christofferson also had an impressive legal career. He clerked for Judge John Sirica during the Watergate hearings, and later was associate general counsel for what was then NationsBank (now part of Bank of America). I wouldn’t expect any earth-shaking statements—general authorities are always careful of what they say—but he is in a perfect position to talk about the intersection of Mormonism and American law.
When judges lie
Judge Vaughn Walker
I’m going to start out by making a pretty bold statement: Judge Vaughn Walker is a liar. Judge Walker is the Chief Judge of the Northern District of California and the author of the recent Perry v. Schwarzenegger decision invalidating California Proposition 8. And in that decision, he lied through his teeth. When I say that, I’m not engaging in Monday morning quarterbacking or judge-bashing. Judge Vaughn was merely following the example of none other than the U.S. Supreme Court, which is perfectly understandable. I might do the same in his shoes. But it still remains that his assertion that Proposition 8 failed the rational basis test is clearly false, and that he is employing Lawrence v. Texas-style intermediate scrutiny under another name.
Lawrence v. Texas was the 2003 Supreme Court case that struck down the Texas statute prohibiting sodomy. The famous language from Lawrence is that morality alone is an insufficient state interest, which explicitly overturns the 1986 case Bowers v. Hardwick that arose from a similar anti-sodomy law in Georgia. The majority opinion in Lawrence was written by Justice Kennedy, who purported to apply the rational basis test to the Due Process claims. But it was immediately clear to all observers that the majority’s standard was something more than rational basis. In order to survive a Due Process challenge under the rational basis standard, a court need only find some possible rational basis for the law, no matter whether the legislature actually had that basis in mind or whether the parties articulate that basis. Justice Kennedy’s majority opinion imposed a much less lenient standard, one that will probably evolve as an intermediate standard between rational basis and strict scrutiny. But the majority lied and called it rational basis, because the prevailing justices didn’t want to admit they were imposing a non-existent level of scrutiny.
Given the holding and the subject matter in Lawrence, it’s no surprise that Judge Walker relied on it heavily. The level of generality is extremely broad, just as in Lawrence. Judge Walker’s opinion pontificates about social acceptance and the emotional impacts of marriage, rather than a Bowers-style narrow focus on the legal status and its associated liberty interests. To the amusement of many, Judge Walker even cited Justice Scalia’s dissent in Lawrence. But most significantly, he declared that there was no rational basis to the enacted law (Proposition 8), just as the majority in Lawrence had done to the Texas sodomy law in 2003. Could the State of California had a rational basis for limiting marriage to heterosexual couples? Undoubtedly, and the intervening defendants in Perry v. Schwarzenneger submitted evidence to prove just that. It appears that they didn’t do a very good job, but it still clearly passed the extremely permissive rational basis standard. And yet Judge Walker cited that same standard for striking Prop 8 down. Clearly, the “rational basis” test he imposed was that of Lawrence v. Texas, and is more properly considered to be some ill-defined intermediate level of scrutiny. In short, Judge Walker lied.
Now, I should say I am making no judgment as to the proper outcome of the Perry case under any other claims, and that I don’t entirely blame Judge Vaughn Walker for hiding what he was doing. The full blame lies with Justice Kennedy and the Lawrence majority. Those sorts of decisions at the Supreme Court level cause significant confusion at the district court and circuit levels. The silver lining may be that an appeal of Perry v. Schwarzenegger could give the Supreme Court a second chance to be honest about what it did in Lawrence. But given the potential standing issues and pitfalls associated with an appeal, I’m not going to hold my breath.
Understanding Perry v. Schwarzenegger
If you bother reading this blog, you are surely aware of last week’s ruling by federal district court Judge Vaughn Walker that invalidated California Proposition 8. Like many people, I have followed the case with some interest, but I have been rather unsatisfied by the media coverage, which has focused on the stories of affected individuals and political posturing. Not that I expect every journalist to have a full background in constitutional law, but at least a reference to the legal substance would be nice.
Apparently I’m not the only one who feels that way, because Adam Laughton of Weightier Matters of the Law just posted a very readable summary of the opinion. Adam’s excellent article is meant to be accessible for laypeople, but attorneys will find it valuable as well. It’s much longer than the average blog post, but it’s a lot easier than reading the full 138-page opinion. But if you really want to do that, I’ve embedded it below.
The Prop 8 (Perry) Decision for Laymen – Weightier Matters of the Law
LDS judge becomes Chief Judge of Federal Circuit
Marc Bohn of Times & Seasons noted that as of June 1, Judge Randall R. Rader is now Chief Judge on the Federal Circuit. The Federal Circuit’s website states:
Chief Judge Randall R. Rader succeeds Chief Judge Paul R. Michel, who retired on May 31, 2010, after more than 22 years of judicial service. Chief Judge Rader was appointed to the Federal Circuit in 1990. Chief Judge Rader is recognized both nationally and internationally as a noted speaker and faculty member in a number of major law programs, including The George Washington University School of Law, the Munich Intellectual Property Law Center, and other programs in Tokyo, Taipei, New Delhi, and Beijing.
Chief Judge Rader is a BYU alumnus, and is fairly well-known in the area of intellectual property. He teaches IP courses at various law schools and speaking on the topic frequently. Chief Judge Rader’s biography is here, but the PDF bio is more entertaining, if only for the smiley picture.
Image credit: GWU.
LDS Judge Jay Bybee back in the headlines
Judge Jay S. Bybee
There’s been quite a bit of controversy over the recent Arizona law that makes it a state crime to be present in the U.S. without authorization. I didn’t see much of a Mormon connection to the law, since the LDS Church doesn’t take a position on immigration. But one of the drafters of the legislation, Arizona Senator Russell Pearce, is apparently Mormon. Some authors have even asserted that the Mormon Church’s missionary efforts might be hampered by the law, particularly among Latinos. I don’t know if that is true, but there is another Mormon connection that is more interesting, in my opinion. As opponents of the Arizona law gear up for a lawsuit challenging the statute, they are confronted with a 2002 memo from the Office of Legal Counsel at the Department of Justice. The memo was issued by none other than Jay S. Bybee.
Bybee gained national notoriety last year when his DoJ memo about “enhanced interrogation techniques” was released to the public. Bybee’s critics said he authorized torture and should be disbarred. (There was quite a discussion about this over at MormonLawyers.com last year, and I should mention that I do not support disbarring lawyers for such legal opinions, regardless of whether I disagree with the conclusions.) Meanwhile, Bybee was nominated to the Ninth Circuit Court of Appeal, and was subsequently cleared of any wrong-doing by the Office of Professional Responsibility. Judge Bybee’s name has mainly faded from public view, and since being confirmed to the Ninth Circuit, he has authored a number of significant court opinions.
Bybee’s immigration memo (see full text below) concluded that state officials have the “inherent authority” to arrest illegal immigrants for violation of federal laws. This was actually a reversal of a 1996 memo issued under the Clinton Administration. Bybee’s memo reads: “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken.” DoJ memos obviously don’t have the force of law, but they are still very persuasive, and proponents of the Arizona statute are already pointing to the memo as support for their position.
In fairness, as some commenters point out over on The Volokh Conspiracy, it isn’t clear that Jay Bybee actually wrote the 2002 inherent authority opinion, only that it was issued under him. But between Jay Bybee and Russell Pearce, it appears that Mormons have an unlikely role in both the Arizona law’s past and future.
Putting the Clark Memorandum to good use
If you are member of the J. Reuben Clark Law Society, you are probably familiar with its biannual publication, the Clark Memorandum. I received my copy of the Spring issue a while back, and finally got around to reviewing it over the weekend. Most issues of the Clark Memorandum consist primarily of speeches or devotional addresses given at the BYU Law School, the JRCLS Annual Broadcast, or some similar function. Sometimes these pieces are reworked and supplemented for print, and sometimes they weren’t previously available. But for the most part it was recycled content that was more inspirational than legal.
However, that tradition may be changing. Since 2009, each issue of the Clark Memorandum has carried a substantive legal article by a member of the BYU Law faculty. Last Spring there was an article about media subpoenas, and the 2009 Fall issue had an article about substantive due process. The current issue carries an article by visiting BYU Law professor Carolina Núñez about employment rights of undocumented workers. The topic is certainly relevant, especially given Arizona’s recent legislation. In the past I have lamented that, as a publication to a law society, the Clark Memorandum wasn’t more, well, legal. Not that I mind the doctrinal or inspirational pieces; I actually enjoy them quite a bit, and would like to see more people write about the intersection of law and Mormonism. But I think that the JRCLS wastes an opportunity to provide a forum for legal scholarship among LDS attorneys if it doesn’t publish substantive articles as well.
The substantive articles in the past year don’t completely change the nature of the publication. In fact, the rest of this issue consists of a BYU devotional address, reminiscences of the founding of the BYU Law School, a welcome address to new BYU Law students, and a recycled article from a 1975 issue of the New Era. And the past legal articles appear to be condensed versions of forthcoming law review articles, such as this one in the Wisconsin Law Review. But it shows a new focus on legal scholarship, which is important if the JRCLS is to back up the “professional excellence” portion of its mission statement. So far, only BYU Law professors have had articles in the Clark Memorandum, which is perhaps a function of the BYU-centric focus of the JRCLS. It’s understandable, of course, but that, too, must change. As shown by the “bloggernacle” (and what I occasionally refer to as the “blawgernacle”), there are quite a few thoughtful LDS attorneys and law professors doing interesting research, and the Clark Memorandum has the potential to be a venue for that scholarship. Otherwise, it’s just a thin self-congratulatory publication with lots of white space.
I ran across an article at FindLaw last week that troubled me. It was a piece by Cardozo Law prof Marci Hamilton arguing that the Mormon Church perpetuates sexual abuse. (The issue of sex abuse and the LDS Church was covered more thoroughly by DOJ attorney Jeff Breinholt last year on Mormon Matters.) I believe that the LDS Church can and should do more to train its leaders and protect children. In that respect, I think Professor Hamilton and I would agree on a lot of things. But her piece on FindLaw is a poorly-researched and one-sided piece of pseudo-scholarship. Go ahead and read her article first, and then read my responses to her assertions.
The inspiration for this article was recent news reports about new sex abuse allegations in various parts of the world against the Roman Catholic Church. Marci Hamilton draws similarities between the Mormon Church and the Roman Catholic Church, and then makes a series of assertions. The first is that Mormon beliefs and practices operate to keep sex abuse secret.
[O]ne of the LDS’s central beliefs is in keeping the public image of the Church pure. According to LDS’s Doctrine and Covenants Student Manual, “it is our great mission to be a standard to all the world. . .” Achieving that goal, the manual teaches, requires measures that “safeguard the purity, integrity, and good name . . . or moral influence of the Church[.]” When one of the missions of a church is to be a moral example for the world, and to protect its “good name,” the incentive to prevent the appearance of tarnishment is powerful, as it has been in both the Catholic and Mormon traditions. This means that the institution will work hard to keep the damning information inside the organization and away from outsiders.
Protecting the public image of the Church is an acknowledged and valid interest, but I strongly disagree with the characterization that it is a central belief of the LDS Church. An easy way to identify actual central tenets of Mormon doctrine could include citations to the the 13 Articles of Faith, the Church Handbook of Instructions, or the four missions of the Church (perfect the saints, proclaim the gospel, redeem the dead, and help the poor and needy). But instead, Hamilton cites a passage in the Doctrine and Covenants Student Manual. That is akin to citing a news article about a case rather than the case law itself, with the potential for equally inaccurate results. And this quote is indeed inaccurate: as others have pointed out, that quote is taken out of context. That reference to safeguarding the good name of the Church comes in a discussion about disciplinary councils. That is very specific church policy, not some core belief. And safeguarding the good name of the Church is merely the third stated reason for disciplinary councils, after saving the souls of the transgressors and protecting the innocent. Whether intentional or in error, Hamilton’s citation is misleading at best. She could have easily found and cited the LDS Church’s extensive press release on child abuse, but it wouldn’t have supported her arguments.
Hamilton goes on to state:
. . . Mormon leaders are discouraged from cooperating with authorities in cases involving abuse. They are not supposed to testify in abuse cases involving their own members (unless the Church itself is implicated), and they must confer with their Office of Legal Services or the Area Presidency before talking to civil authorities. In other words, there must be a pause between learning of the horror of abuse and picking up the phone to involve the authorities. Moreover, they are not supposed to persuade victims to testify (or not to testify) against LDS members.
That first sentence is a bold statement, for which she cites no authority or sources. Contrast it with the LDS Church’s official statement on child abuse:
When abuse is suspected, the Church directs its members to first contact the legal authorities and then their local bishop for counseling and support. The Church cooperates fully with law enforcement in investigating incidents of child abuse and bringing perpetrators to justice.
My personal experience indicates that the official statement is much closer to reality than Hamilton’s unsupported assertions. If there are LDS bishops or stake presidents that discourage cooperation with legal authorities, they are acting deplorably and counter to LDS Church policy. Hamilton’s editorializing about pausing after “the horror of abuse” is inflammatory language, but it isn’t a valid criticism. She cites LDS Church policy about not encouraging or dissuading victims to testify as proof that the Mormon Church covers up sex abuse. But the decision to testify is an intensely personal decision, and if anyone should counsel a victim of abuse about testifying, it should be qualified mental health and legal experts, rather than ecclesiastical leaders.
Perhaps the most bizarre assertion Hamilton makes about the Mormon Church is that it has no hierarchy, but that all of its leaders are prophets that speak as if they are God. Here, Hamilton includes a parenthetical that Mitt Romney is also a Mormon Church leader and prophet. Again, those statements are wrong. First, the LDS Church has a well-recognized hierarchical structure, with a single acting and authorized prophet. (The fact that the Quorum of the Twelve Apostles includes men called as “prophets, seers, and revelators” should not be confused with its role as a supporting body to the Presidency of the Church.) Hamilton argues that “LDS leaders have impressive power to persuade believers to put the interests of the organization ahead of the victims.” But congregational leaders are not prophets, nor do Mormons believe that they speak for God if they counsel in direct contradiction to doctrinal teachings and established Church policy. The reference to Mitt Romney is a cheap political aside. As far as I know, Romney is not an LDS Church leader of any sort, and his church membership is utterly irrelevant to this discussion.
One of Hamilton’s main criticisms of Mormon Church policy on child sex abuse is that Mormon leaders focus more on the abuser than the abused, alleging that “victims have no escape route, and perpetrators can have a field day.” She may have some valid criticisms here, but she doesn’t support this blanket assertion with any examples or explanations. It sounds more like the opening statement of one of the plaintiff’s attorneys she consulted than a conclusion of legal scholarship. I would be interested to hear how congregational leaders could improve handling of child sex abuse victims, but Hamilton provides no suggestions. She also discounts the referral system of LDS Social Services as an internal system that traps victims, without mentioning that all psychologists and social workers employed by LDS Social Services are duly licensed in their respective jurisdictions and subject to all the applicable reporting requirements.
Throughout the article, Hamilton ignores the potential minefield of legal issues American clergy face when they encounter physical or sexual abuse. The laws are often unclear, and even when they believe that they are following the law, there are still plenty of pitfalls for ecclesiastical leaders. For example, an Arizona appeals court held last year that a Mormon bishop’s testimony in a child abuse case was privileged because the defendant’s statements were made in a confession. The Bishop and prosecutors asserted that the communication was not privileged because the defendant’s wife was present in the room at the time, and the defendant had already disclosed the abuse to his wife, but the Arizona Court of Appeals disagreed. This is not only a matter of ensuring that a child abuser can be successfully prosecuted—churches also face significant civil liability if a clergy discloses privileged communications. The LDS Church has already lost at least one civil lawsuit after a Bishop went to legal authorities after a member of his congregation confessed to sexual abuse. To this end, the LDS Church provides all ecclesiastical leaders in the U.S. with a 24-hour hotline to legal counsel that can analyze each factual scenario and provide counsel as to whether the applicable state laws allow/require the ecclesiastical leader to disclose the abuse. From the LDS Church’s official statement on child abuse:
Twenty-three states have laws requiring clergy to report only when the information is not privileged. In these states, for instance, a clergyman who learns of abuse in a confidential communication, such as a confession, has no legal duty to report it to authorities, whereas a clergyman who personally observes abuse or has an independent reason to suspect abuse is required to report. In nine other states, clergy have a duty to report child abuse no matter what. And in the remaining 18 states and in the District of Columbia, reporting statues do not require clergy to report child abuse at all.
Professor Hamilton is aware of the many different legal standards and definitions, as well as the 24-hour legal hotline; she mentioned it the second excerpt I quoted above. And yet she interprets this system as a self-serving tactic to discourage reporting of abuse, rather than an attempt to comply with relevant laws. Hamilton seems to argue that religious organizations should report child sex abuse even when prohibited by state law. And while that may be a legitimate argument when shaping public policy, church leaders in real life have to follow the law the best they can.
Marci Hamilton is a smart woman who has written books on both child sex abuse and the intersection of religion and the law in America. She knows the full complexity of the issues, and so do LDS Church leaders and their legal counsel. And yet she chose to paint an oversimplified and skewed picture of Mormon Church policies, apparently relying on the biased experience of attorneys suing the Mormon Church and citing student manuals out of context rather than official policies and real-life practices.
I’m not arguing that the LDS Church shouldn’t improve its handling of child sex abuse. I think Mormon ward leaders need more training and stake leaders should be vigilant to ensure that the stated policies are carried out. Jeff Breinholt and his commenters raised other relevant concerns in his article last year. But Professor Hamilton is clearly unfamiliar with the Mormon Church, and her article was poorly researched and often inaccurate.
For further reading on issues relating to the Mormon Church and child sex abuse, see the following articles:
- Greg Call, “Dealing with Abuse in the Church” Times & Seasons.
- Keith A. Thompson, “The Sanctity of the Clergy-Penitent Privilege” (PDF), LDS Prespectives on the Law, J. Reuben Clark Law Society.
- Nate Oman, Comment on “Confidentiality of Confessions,” Splendid Sun.
Photo credit: This Side of the Pond, pursuant to fair use.
Legal messages from April 2010 General Conference
Transcripts from last weekend’s LDS General Conference won’t be up until Thursday, but here’s a few of the more messages I noted during the conference that are relevant to attorneys. This is a little bit like commenting on still-unpublished cases, but I’m pretty sure most of these talks and excerpts will survive First Presidency review in the same form they were delivered orally. (If you want to review portions of the conference, I recommend using the new beta.lds.org site—it is a vast improvement over the current pages.)
Elder D. Todd Christofferson’s talk on the scriptures could have been titled “Primary Sources.” The quote that jumped out at me as the boldest was this bit about the biblical bases for social justice.
In a complete reversal from a century ago, many today would dispute with Alma about the seriousness of immorality. Others would argue that it’s all relative, or that God’s love is permissive. ’If there is a God,’ they say, “He excuses all sins and misdeeds because of His love for us. There is no need for repentance, or at most, a simple confession will do.” They have imagined a Jesus who wants people to work for social justice, but who makes no personal demands on their personal life or behavior. (capitalization and punctuation added)
I’m not usually one for storytelling, but I liked President Thomas Monson’s humorous account of a creative cheater in his business law class (and the cheater’s eventual just desserts). Academic institutions have come a long way since the days of unsupervised or barely supervised test taking. Many law school classes are open book, and additionally, many law schools use exam-taking software that makes cheating virtually impossible.
President Dieter Uchtdorf is a favorite speaker of mine, and I appreciated his message on patience during the Priesthood Session, as well as his message on Saturday Morning about working to carry out the Lord’s work. His opening story, however, is a great reminder of the importance of checking your sources. The story involved the people in a German town where a statue of Jesus was badly damaged during the bombing of World War II. The hands of the statue were damaged beyond repair, so the people decided to leave the statue in its damaged state, with a sign below that read: “You are my hands.” The sentiment is touching, but it’s almost certainly an urban legend. Various versions of the story, often set in Germany but also in England, have been floating around for years. The legend may be based on an incident of vandalism in San Diego, California, or damage during an Apartheid-era police raid in Soweto, South Africa. But in it’s common form, it’s a myth. President Uchtdorf is likely aware of this—he described the incident as a story people tell, and it didn’t change his central message. But it’s always a good idea to double-check your authorities. When I clerked for a judge, he was never impressed when an attorney cited a case as authority for a proposition that the case didn’t really support.
My favorite talk with legal implications actually came from a speaker who is a physician rather than an attorney. Elder Gregory Schwitzer’s talk on using good judgment sounded very similar to a remark I heard from a district attorney. I interned with a district attorney’s office after my first year in law school, and the D.A. met with the dozen or so interns on our first day. He said the number one thing they looked for was a judicial temperament, and that the most important decisions in the criminal justice system are often made by the prosecutors rather than by a judge or jury. I ended up working with the team that prosecuted child sex offenses, and they told me repeatedly that a mere indictment or arrest for child sex offenses is usually enough to ruin a person’s career and reputation. To their enormous credit, they took their jobs very seriously and tried to balance the interests of the alleged victims and the public with the rights of the accused.
I think all attorneys, regardless of their practice area, should have the kind of judicial temperament that the district attorney told me about back then. Like Elder Schwitzer said in his talk, the Gospel of Jesus Christ provides a good framework for making good choices. That’s essentially what the J. Reuben Clark Law Society’s mission statement says when it states: “We affirm the strength brought to the law by a lawyer’s personal religious conviction.” I doubt that Elder Schwitzer was thinking specifically of lawyers when he wrote his talk, but it’s a good message for law students and lawyers alike.
Image credit: Jeremy Hall.
LDS Business College starts paralegal program
I recently found out that the LDS Business College is starting a new associates degree program in “Paralegal Studies.” To be honest, though I have worked with dozens of paralegals, I have never before explored what a paralegal degree entails. As I looked through the course requirements, it looked a lot like the 1L year for many law schools. Since this is an LDS Church school, there are the usual religion classes and GE requirements. But the rest of the program requirements are classes like Contracts, Torts, Legal Research and Writing, Ethics, Criminal Law, and Evidence—all of which I took at some point in law school. The program even has a finance class, something that could benefit many lawyers as well.
Clearly, American paralegal programs are set up like “law school lite,” geared towards getting students through quickly (often taking classes at night) and certified. You could probably say the same of many law schools, of course, since professional degrees are not meant to weed students out. Nevertheless, there is at least an aspect of scholarship that makes a law degree much more interesting to my mind. (Hence, the pseudo-scholarship musings on this blog.)
The announcement from the LDS Business College also reminded me of the enormous inequities between lawyers and paralegals. Paralegals frequently do the same sort of work as many associates, but for half the pay. I don’t think that arrangement is particularly fair, but the bar exam represents such a significant barrier to entry that it isn’t likely to change any time soon. I note that in many countries the line between lawyers and paralegals/legal assistants is somewhat blurred. For example, many Latin American countries use notarios in quasi-legal functions, but that is strictly prohibited in the U.S.
Most paralegals I have worked with have been very good at what they do, and I respect them highly. In fact, I relied heavily on the experience of many paralegals when I first started practicing, and I still often consult with a few veteran paralegals about tricky procedural issues. The mechanical nature of modern legal practice almost necessitates a high degree of delegation, so good paralegals or legal assistants are absolutely crucial to the ethical and efficient practice of law. If the LDS Business College can help train more good paralegals, than I think that’s a good thing and I wish the program great success.
Image credit: ARamøs
