News For the Mormon Legal Community

J. Reuben Clark Law Society Student Newsletter--December

2009-12-15T16:37:00.000-05:00

Click HERE to read the December issue of the J. Reuben Clark Law Society Student Newsletter. It highlights the Franklin Pierce Law Center and its tradition of service.

Should you really go to law school?

2009-11-24T12:14:00.001-05:00

Despite the down economy and big firm layoffs, college students are still beating down the doors of law schools in America. More people — 60,746 — took the most recent LSAT on September 26 than had ever taken the exam before. The number of LSAT takers has been on the rise since 2007, but this is the largest jump since 2001— nearly 20% over last year.

I won't dig into the reasons for this increase too much. (If you are interested, this thorough post on Most Strongly Supported has a good discussion.) But for any person considering law school or a legal career, this is a good excuse to discuss the question of whether you really should go to law school.

There has been a flurry of articles and blawg posts lately about whether a legal education is really a good investment. Vanderbilt Law professor Herwig Schlunk wrote an entertainingly-titled article "Mamas Don't Let Your Babies Grow Up To Be ... Lawyers," and Paul Caron of TaxProf Blog asserted that "Going to Law School Is Like Starting to Smoke." There's a healthy dose of humor and pessimism in both those pieces, but even the most optimistic observers have to recognize that the legal profession is undergoing a shift that is destroying many of the institutions that made it so lucrative. Aspiring lawyers must now realize that they might not have a job waiting for them when they graduate from law school. And law schools, particularly those in the top tier, have become more like big businesses than halls of learning. While the median income of lawyers increased by 25% from 1987 to 2002, the average law school debt increased 400% over that same period. In 2005, the average graduate of a private law school had $78,000 of debt from law school alone.

Young LDS students considering legal careers should carefully consider these sobering number, in light of Mormon Church advice on avoiding debt. I have heard many people within the Church say that borrowing money is okay for purchasing a home, obtaining an education, and sometimes to purchase a vehicle. But given the housing market collapse and the rising costs of a legal education, students should understand that neither a house nor an education is always a good investment.

While some parts of the country are still under-serviced, there are probably too many people getting into the practice of law. Last month Justice Antonin Scalia commented that he thought that America is "wasting some of our best minds" on lawyering, when other fields lack qualified applicants. After last September's jump in LSAT takers, the ABA Journal took the unusual step of suggesting that applicants "consider the alternatives."

My advice to people considering law school is the same that it has always been. If you are interested in the practice of law, then by all means, pursue it. But if you don't know what to do with your life and you know lawyers can make a lot of money, I think it's a bad decision. I also recommend that future law students find out for themselves whether they will like legal practice. Most law schools will let you sit in on first-year law school classes, and you can volunteer or do internships at legal offices to find out what the practice is really like. It is better to find out early on that you wouldn't really like being a lawyer, and if you do like it, the experience will cement your decision.

This content is cross-posted from LDS Law.

Legal Briefs: Phoenix Temple Opponents, Elizabeth Smart Kidnapper Pleads Guilty, Bishop Told of Abuse

2009-11-20T19:14:00.000-05:00

Mormon temple opponents in Phoenix raise funds, hire an attorney. AZ Central

Legal Brief: LDS Church Nondiscrimination, Phoenix Temple Zoning Approved

2009-11-11T10:00:00.001-05:00

The LDS Church declares its support of nondiscrimination regulations that would extend protection in matters of housing and employment to gays in Salt Lake City. LDS Newsroom

Statement from LDS church regarding Salt Lake City's non-discrimination ordinance. Deseret News

Phoenix planning commission approves zoning changes for Mormon temple. Fox 10 AZ

Neighbor vs. Neighbor over Mormon Temple in Phoenix. Fox 10 AZ

Day in the Life of a Law Student

2009-11-10T09:17:00.013-05:00

7:00 - 8:00: I woke up and got ready for the day. For my International Human Rights class, my partner and I are going to be doing a mock deposition which required me to wear my suit and tie. I much prefer my normal ensemble of jeans and a T-Shirt.
8:00 - 9:00: Drove to school and there wasn't any traffic. Not surprised. I get a kick out of watching the early morning news and their coverage of Dayton's traffic. They show live shots of the freeways and say "yep, traffic is still moving nicely." It doesn't matter whether it's 5am or 5pm, the freeways are always empty! I don't know why they think they need to remind you every ten minutes that there's no traffic.

I have a 9:30 class that I'm (supposed to be) reading for right now. It's one of those rare classes where the professor doesn't call on anyone in class which makes it so easy not do any all of the reading. She just lectures and then will periodically ask "what do you think about this situation?" I'm heading into class now. In law school if you show up ten minutes early you're on time and if you show up 5 minutes before class starts you're five minutes late. I better hurry so I won't be late.

9:30: Professors are a bit like comedians, once they come up with some good material they just stick with it. They have you read the same cases, they make the same comments, and of course, tell the same jokes. So you can get notes from friends who have previously taken the class and read right along with the professor. I have a friend who took this class last semester and she is a superb note taker. She literally typed everything the professor said. It makes it so much easier because now I don't have to take notes, I can just add comments as the professor lectures. Here's a good tip for you: go to Outline Depot, have about 40,000 outlines on their site. You can download the outlines for free. All they ask from you is to give them one of your outlines. You can look up the outlines based off of the school, professor, class, textbook. Some of the outlines are unbelievably good. Print off a copy and then read what you're going to cover before each class.
11:00: Reading for my evidence class. This is one of my all-time favorite classes. I like that there are some concrete rules you can "hang your hat on". I also really like this professor because he really knows his stuff. He litigated for many years and is now a judge. He sat "first seat" in 20 homicide trials. He's one guy I would NEVER want to have to go up against in a case. But back to my reading, I'm trying to understand the rules for assertions and how they relate to the hearsay rule. The book says, "...the court did not pursue its inquiry beyond the point of concluding that evidence of an 'implied' assertion must necessarily be excluded wherever evidence of an 'express' assertion would be inadmissible." It goes on to say that "no oral or written expression was to be considered as hearsay, unless it was an 'assertion' concerning the matter sought to be proved and that no nonverbal conduct should be considered as hearsay, unless it was intended to be an 'assertion' concerning said matter." I'll understand this concept as soon as I figure out what the following words mean: hearsay, implied assertion, express assertion, assertion, statement, and non assertive verbal conduct. Wish me luck.
12:00: I ran down to the lunch room, which is called "The Jury Box", to grab a quick bite and then get back to reading for my afternoon classes. I was going to make it real quick but then I got invited to the to the Christian Legal Society Luncheon. I wasn't all that excited about going but I didn't want to be rude so I took my lunch with me and listened to the speaker. Unfortunately, we don't have a J. Reuben Clark Law Society chapter here. We are at an all-time high right now with four LDS law students. I really wish I did go to a school with a chapter because I think it would be a lot of fun.
1:30: Went to my Professional Responsibilities class. The professor does a good job of making it 'real life' and allowing students to truthfully answer that they may bend the rules in certain circumstances without lecturing them and telling them they're wrong. There can be a lot of really complex moral issues that get raised and some of them can be difficult to resolve. For instance, if a client of yours tells you that they murdered someone and at the same time an innocent person is being prosecuted for that same crime under the Professional Rules of Conduct. You would be breaching client-confidentiality by telling anyone that the person being charged with the crime is really innocent.
2:30: Evidence: The professor called on a student to tell us about a complex case we had been assigned to read. After a few minutes it became apparent that the student hadn't read the case very closely. The professor then asked if anyone would like to volunteer as "co-counsel". No one in class raised their hand and so after a minute I volunteered. I felt like I knew the case when I raised my hand but after a few minutes of being drilled with questions I wasn't sure what was going on and fumbled my way through the case. Oh well, I guess if you're going to look stupid when telling the class about a case it might as well be a hard one!
3:30: I am taking a Law Practice Management class this semester. We have had to create a mock law firm and figure out the logistics as if you were starting your own firm. Next Monday my law firm and I have a business plan due. I'm responsible for covering the technological aspects for our firm". I've researched all the hardware and software a law firm would need to operate catering to 5 attorneys. The overall costs are staggering. On the hardware side we'll be purchasing computers, printers, copiers, scanners, postage meter, television, video camcorder, server, switches, shredder, Blackberry's etc. On the software side we'll be purchasing TimeMatters, LogMeIn Pro, QuickBooks, Adobe Pro 9, Base Case Solutions, HotDocs, Windows 7 Pro, Lexis Nexus access. The list goes on and on.
4:30: Still working on the business plan. I'm describing the costs and purpose behind each of the tools of technology we will be purchasing. It's a tedious process but I'm almost done. I just keep reminding myself that there is no final in this class!
5:30: Deposition time! (I'm writing this after the fact. I don't think anyone would have liked me sitting there with my laptop typing away). The law school does a great job of making these type scenarios as real as possible. In the basement of the law school there is an area with offices and a large conference room set aside for mock interviews, depositions, and arbitrations. Attending the deposition was myself, my partner, the professor, the plaintiff's two attorneys (two of my classmates), the plaintiff (a paid actor), a real stenographer, and a camera guy. So, it was a little nerve racking to ask the right questions with so many people listening to everything you say. But I didn't say anything to stupid and we got through it. It was good practice, it's nice to get to do it when it doesn't matter so that when I do it and it does matter I'll have some experiences to fall back on.
6:30: I'm hungry and I don't have any food left at school. So I walk back out to my car, get in, turn the key and nothing happened. The car was completely dead! I then looked and saw that I had left the head lights on all day. How stupid can I be? I swear I've never done that before and of course I don't have jumper cables. Who would keep jumper cables in their car? After phoning in a favor I got my car started back up and was on my way home. And guess what? There was no traffic!
7:30: I finally get back home. I make me some French toast. Doesn't taste too bad but at this point I'd eat just about anything.
8:30: I'm done eating and have had a minute to read emails and return phone calls.
9:30: I've got a ton of school work that needs to get done but I'm not feeling real motivated and the Biggest Loser is on. Plus why do today what you can put off until tomorrow?

What's it Really Like to be a Law Student?

2009-11-09T11:01:00.003-05:00

Before starting law school I often wondered what it was really like? Can it really be that much harder than being an undergrad? Are professors really as mean as people say they are? Will I be able to keep up with the work load required? I spent hours visiting every blog and website I could find to learn what law school was really like.
Tomorrow I will attempt to write every hour of my "work" day to give future law students a glimpse of what a day in the life of a law student is really like. Check back on the hour, every hour. Additionally, I will 'tweet' my updates.
Come follow the law school madness.

U. of New Mexico Women's Soccer Player Attacks BYU

2009-11-07T17:44:00.002-05:00

I know it's all over the web and TV but if you haven't seen the crazy things this University of New Mexico women's soccer player did to BYU's soccer team, you gotta see this. Could she be charged criminally for some of the things she did? Especially the hair pulling.

2 Year JD or the Traditional 3 Year JD?

2009-11-06T16:34:00.000-05:00

Graduating from law school in two years would have been impossible until 2004, when the almighty American Bar Association lifted the requirement that law students receive six semesters of training. In 2005, the University of Dayton became the first law school to develop a two year program. Since that time Northwestern University and Washburn University have developed their own two year programs.

By starting law school at the beginning of the summer and by taking one additional class to each semester, law students graduate in five semesters instead of six, shaving off a full year to graduation. This modified schedule still allows the a law student one full summer off. On a two year track you take 18 credits each semester for five semesters for a total of 90 credit hours. On the traditional three year track a student will take 15 credits each semester for six semesters for a total of 90 credit hours. I am on the two year track so I know first hand the good and bad of hurrying through so fast.

What are the advantages to the two year program?

Obviously you graduate one year faster! Many attorneys that I have spoken to said the third year was largely a waste of time and if the third year really is a waste of time then why not remove it altogether?
You save a full year's cost of living expenses. Depending on what city you live in and if you have a family or not the extra year of living expenses can easily be $24,000.
You will enter the work force one year earlier and (in theory at least, but who knows with today's economy) earn an additional years income.

What are the disadvantages of the two year program?

Your class rank is compiled with the school as a whole and not just the other students on the accelerated class schedule. This can be a disadvantage when you're taking the same courses in two years that other law students are taking in three.
It's difficult to find the time to join in outside activities such as the 'student law societies'. During your first year of law school you're struggling so hard just to keep your head above the water and then during your second year you're busy working, preparing bar applications, studying/taking the MPRE, and trying to secure a job after law school that its easy to not join in any extra activities.
With only one summer off it makes it more difficult to find permanent work.
When you graduate from law school you don't have the work experience that other students have.
Unfortunately you still pay for three year's worth of tuition. For instance the University of Dayton charges by the credit hour for it's courses not by the semester and so whether you complete your 90 credit hours in two years or three the cost is still the same.

Final verdict?

Two year programs aren't for everyone, I'll admit to that but if you are considering a two year program ask yourself this; where will I be in three years if I start on a two year program versus the traditional three year track? In 36 months from starting law school, a student on the two year program will complete their 90 credit hours, study for the bar exam, take the bar exam, wait several months to receive their bar results, (upon successfully passing the bar) be admitted to a state bar, have been actively working as an attorney for approximately six months, and received a year's worth of income. While a law student on the traditional three year program will have completed their 90 credit hours and accumulated approximately $24,000 more in living expenses. For me the decision wasn't easy but I am happy with the choice I made.

In response to a commenter

2009-11-03T13:52:00.001-05:00

Last month I noticed a lurking commenter on this site that also commented on one of Jeff Breinholt's posts over at Mormon Matters. (Jeff is a DoJ attorney with a superb series of legal posts. If you haven't read his stuff, I highly recommend it.) The commenter identifies himself as Frank Fox, who Jeff named as one of the pro se litigants who has filed multiple spurious lawsuits against the Mormon Church.

I got curious about these cases, and found several opinions dismissing two of Fox's previous lawsuits. The first lawsuit, Fox v. Hawk, was dismissed sua sponte under F.R.C.P. 12(b)(6). (Cases filed pro se and in pauperis can be reviewed sua sponte under Hall v. Bellmon.) The Utah District Court gave Fox a chance to amend his Complaint, but the Amended Complaint still failed to state a claim and the case was ultimately dismissed on May 9, 2008.

Fox filed another pro se suit on February 27 of this year in the case Fox v. Eyring. Fox identified Henry B. Eyring as the leader of the Mormon Church, and alleged various claims, including that Eyring and the Church had violated his civil rights under 42 U.S.C. §1983 and §1985 and had cyberstalked him. Acting sue sponte, the Utah District Court again found Fox's claims to be baseless and dismissed the suit for failure to state a claim.

Not easily deterred, Frank G. Fox filed a new case in his home state of Louisiana a mere week after the dismissal of the Eyring case. In Fox v. Tippetts he again alleges civil rights violations by the Church of Jesus Christ of Latter-day Saints. Fox says that the Church hasn't yet responded to the lawsuit, and I haven't seen any of the filings. However, unless Fox's pleadings have improved significantly since Eyring, this case may be doomed to a swift dismissal as well.

My guess is that almost any large institution or public figure continually face spurious lawsuits. In fact, Jeff Breinholt's research seems to show that the Mormon Church faces more than it's fair share of frivolous litigation. But these aren't the sorts of cases that keep the Church Legal Department up at night.

How Maine Q. 1 is different from Prop 8

2009-10-28T12:16:00.000-04:00

The campaign has mostly stayed below the radar, but voters in Maine will soon decide whether same-sex marriage will be legalized in their state. Question 1 on this November’s ballot is very similar to last year’s California Proposition 8, but there are some big differences that I think are important.

Same-sex marriage was briefly legalized in California as a result of the state Supreme Court decision In re Marriage Cases. The court refused to stay its holding to allow legal challenges, resulting in the voter initiative know as Prop. 8. That vote and the subsequent California Supreme Court review brought gay marriages to a halt in California, but did not invalidate those already performed.

Contrast that tumultuous history with the background in Maine. Like in New Hampshire, same-sex marraige was legalized in Maine through legislative act rather than judicial opinion. I consider this to be a far preferable method of implementing new laws, for several reasons. For example, the Maine statute included specific language about religious freedoms and addressed how the new law would (and would not) alter the obligations of religious organizations, clergy, and individuals. I don’t think the Maine statute went far enough to protect individuals, but it’s a lot better than the silence in California on the topic.

Maine was also prudent enough to delay issuing marriage licenses to gay couples pending the outcome of Question 1. While this may delay the ability of some couples to marry, I think it is much better to avoid the legal limbo and further litigation that happened in California. The Maine statute also seems to address legitimate interests of gay citizens, rather than the ephemeral social acceptance the California Supreme Court attempted to mandate. In general, I think legislators and officials in Maine have taken a far better approach to the question of legalizing same-sex marriage than their counterparts in California.

For Mormons, one of the biggest differences in the two campaigns is that the LDS Church has not taken an active role in the Maine initiative like it did in California. Individual Mormons are active in the campaign, but there have been no letters read from the pulpit or public statements from Mormon officials like in Prop. 8. I think this may be due to the fact that there is a smaller LDS population in Maine than in California, and perhaps the legislative approach to the law change and religious protections were more palatable to Mormon leaders. However, given the backlash and hostility following the outcome of Prop. 8, perhaps Mormon leaders are reluctant to get involved in a firefight again.

Despite their differences, Maine Question 1 and California Proposition 8 do have one thing in common: just days before the election, both initiatives were too close to call. Maine Question 1 is running about even in the polls, so it won’t be until November 3 before we know the outcome.

Photo credit: J. Stephen Conn.This content is cross-posted from LDS Law.

Join the International Day of Service

2009-10-23T16:47:00.000-04:00

J. REUBEN CLARK LAW SOCIETY INTERNATIONAL DAY OF SERVICE

The J. Reuben Clark Law Society motto includes the following statement: “We strive through public service and professional excellence to promote fairness and virtue founded upon the rule of law.” In keeping with this theme, J. Reuben Clark Law Society student chapters around the world will be participating in an *International Day of Service on January 22, 2010.

The service each chapter renders can be of any kind, but it is the hope that each chapter will engage in a project that enables students to use their legal skills. In addition, service projects should be tailored to the specific needs of the communities in which each JRCLS Student Chapter resides.

Included below is a list of suggestions for generating service projects:
• Partner with the local JRCLS attorney chapter to participate in a project
• Contact your law school administration about potential ways your JRCLS chapter can perform service that will benefit the school
• Partner with an organization that already exists at your law school to perform a service project

Actual service projects might include:
• Partnering with an undergraduate pre-law program to provide mentoring or LSAT tutoring to pre-law students
• Visiting a local high school government class to talk about the law school experience and the merits of graduate school
• Volunteering at a legal aid clinic in the community

Please contact JRCLS Public Service Committee Co-Chairs Elsa Jacobsen (ewj4@byulaw.net) or Elijah Nielsen (elijah.nielson@gmail.com) with any questions.

*The J. Reuben Clark Law Society National Day of Service is now the International Day of Service. We\'ve been serving the world one chapter at a time, and now, on January 22, 2010 the JRCLS Chapters will be serving the world at the same time. Join us in this momentous event as we take service to the next level.

Legal Briefs: JRCLS Student Chapter Newsletter, Free LDS Legal Advertising

2009-10-17T11:05:00.004-04:00

The J. Reuben Clark Law Society student chapter publishes the October newsletter.

Looking for a way to find more clients in this tough economy? LDS Legal Link continues to be a great resource for LDS attorneys. The website lists LDS lawyers from across the country, including their areas of expertise and where they are admitted to practice. If you haven't registered with LDS Legal Link yet do it now it's free.

Dallin H. Oaks on Religious Freedom (Includes Video and Text)

2009-10-15T22:25:00.011-04:00

On Tuesday, Elder Dallin H. Oaks, delivered a powerful speech on religious freedom at Brigham Young University-Idaho.

Transcript of Elder Dallin H. Oaks speech.

My dear young friends, I am pleased to speak to this BYU-Idaho audience. I am conscious that I am also speaking to many in other places. In this time of the Internet, what we say in one place is instantly put before a wider audience, including many to whom we do not intend to speak. That complicates my task, so I ask your understanding as I speak to a very diverse audience.

In choosing my subject I have relied on an old military maxim that when there is a battle underway, persons who desire to join the fray should "march to the sound of the guns."So it is that I invite you to march with me as I speak about religious freedom under the United States Constitution. There is a battle over the meaning of that freedom. The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.

An 1833 revelation to the Prophet Joseph Smith declared that the Lord established the United States Constitution by wise men whom he raised up for that very purpose (Doctrine and Covenants 101:80). The Lord also declared that this constitution "should be maintained for the rights and protection of all flesh" (Doctrine and Covenants 101:77; emphasis added).

In 1833, when almost all people in the world were still ruled by kings or tyrants, few could see how the infant United States Constitution could be divinely designed "for the rights and protection of all flesh." Today, 176 years after that revelation, almost every nation in the world has adopted a written constitution, and the United States Constitution profoundly influenced all of them. Truly, this nation's most important export is its constitution, whose great principles stand as a model "for the rights and protection of all flesh." On the vital human right of religious freedom, however, many constitutions fall short of the protections that are needed, so we are grateful that the United States government seeks to encourage religious freedom all over the world.

To illustrate the importance of basic human rights in other countries, I refer to some recent history in Mongolia, which shows that the religious freedom we have taken for granted in the United States must be won by dangerous sacrifice in some other nations.

Following the perestroika movement in the Soviet Union, popular demonstrations in Mongolia forced the Communist government to resign in March 1990. Other political parties were legalized, but the first Mongolian elections gave the Communists a majority in the new parliament, and the old repressive attitudes persisted in all government departments. The full functioning of a democratic process and the full enjoyment of the people's needed freedoms do not occur without a struggle. In Mongolia, the freedoms of speech, press and religion - a principal feature of the inspired United States Constitution - remained unfulfilled.

In that precarious environment, a 42-year-old married woman, Oyun Altangerel, a department head in the state library, courageously took some actions that would prove historic. Acting against official pressure, she organized a "Democratic Association Branch Council." This 12-member group, the first of its kind, spoke out for democracy and proposed that state employees have the freedoms of worship, belief and expression, including the right to belong to a political party of their choice.

When Oyun and others were fired from their state employment, Oyun began a hunger strike in the state library. Within three hours she was joined by 20 others, mostly women, and their hunger strike, which continued for five days, became a public demonstration that took their grievances to the people of Mongolia. This demonstration, backed by major democratic movement leaders, encouraged other government employees to organize similar democratic councils. These dangerous actions expanded into a national anti-government movement that voiced powerful support for the basic human freedoms of speech, press and religion. Eventually the government accepted the demands, and in the adoption of a democratic constitution two years later Mongolia took a major step toward a free society.

For Latter-day Saints, this birth of constitutional government in Mongolia has special interest. Less than two years after the historic hunger strike, we sent our first missionaries to Mongolia. In 1992 these couples began their meetings in the state library, where Oyun was working. The following year, she showed her courage again by being baptized into this newly arrived Christian church. Her only child, a 22-year-old son, was baptized two years later. Today, the Mongolian members of our Church number 9,000, reportedly the largest group of Christians in the country. A few months ago we organized our first stake in Mongolia. Called as the stake president was Sister Oyun's son, Odgerel. He had studied for a year at BYU-Hawaii, and his wife, Ariuna, a former missionary in Utah, graduated there.

One of the great fundamentals of our inspired constitution, relied on by Oyun of Mongolia and countless others struggling for freedom in many countries in the world, is the principle that the people are the source of government power. This principle of popular sovereignty was first written and applied on the American continent over 200 years ago. A group of colonies won independence from a king, and their representatives had the unique opportunity of establishing a new government. They did this by creating the first written constitution that has survived to govern a modern nation. The United States Constitution declared the source of government power, delegated that power to a government, and regulated its exercise.

Along with many other religious people, we affirm that God is the ultimate source of power and that, under Him, it is the people's inherent right to decide their form of government. Sovereign power is not inherent in a state or nation just because its leaders have the power that comes from force of arms. And sovereign power does not come from the divine right of a king, who grants his subjects such power as he pleases or is forced to concede, as in Magna Carta. As the preamble to our constitution states: "We the People of the United States . . . do ordain and establish this Constitution."

This principle of sovereignty in the people explains the meaning of God's revelation that He established the Constitution of the United States "that every man may act . . . according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment" (Doctrine and Covenants 101:78). In other words, the most desirable condition for the effective exercise of God-given moral agency is a condition of maximum freedom and responsibility - the opposite of slavery or political oppression. With freedom we can be accountable for our own actions and cannot blame our conditions on our bondage to another. This is the condition the Lord praised in the Book of Mormon, where the people - not a king - established the laws and were governed by them (see Mosiah 29:23-26). This popular sovereignty necessarily implies popular responsibility. Instead of blaming their troubles on a king or tyrant, all citizens are responsible to share the burdens of governing, "that every man might bear his part" (Mosiah 29:34).

"For the rights and protection of all flesh" the United State Constitution includes in its First Amendment the guarantees of free exercise of religion and free speech and press. Without these great fundamentals of the Constitution, America could not have served as the host nation for the restoration of the gospel, which began just three decades after the Bill of Rights was ratified.

The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The prohibition against "an establishment of religion" was intended to separate churches and government, to prevent a national church of the kind still found in Europe. In the interest of time I will say no more about the establishment of religion, but only concentrate on the direction that the United States shall have no law "prohibiting the free exercise" of religion.

The guarantee of the free exercise of religion, which I will call religious freedom, is the first expression in the First Amendment to the United States Constitution. As noted by many, this "pre-eminent place" identifies freedom of religion as "a cornerstone of American democracy."The American colonies were originally settled by people who, for the most part, had come to this continent to be able to practice their religious faith without persecution, and their successors deliberately placed religious freedom first in the nation's Bill of Rights. So it is that our national law formally declares: "The right to freedom of religion undergirds the very origin and existence of the United States."

The free "exercise" of religion obviously involves both the right to choose religious beliefs and affiliations and the right to "exercise" or practice those beliefs. But in a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be qualified by the government's responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens' person or property from neighbors whose intentions include taking human life or stealing in circumstances rationalized on the basis of their religious beliefs.

The inherent conflict between the precious religious freedom of the people and the legitimate regulatory responsibilities of the government is the central issue of religious freedom. Here are just a few examples of current controversial public issues that involve this conflict: laws governing marriage and adoption; laws regulating the activities of church-related organizations like BYU-Idaho in furtherance of their religious missions - activities such as who they will serve or employ; and laws prohibiting discrimination in employment or work conditions against persons with unpopular religious beliefs or practices.

The problems are not simple, and over the years the United States Supreme Court, which has the ultimate responsibility of interpreting the meaning of the lofty and general provisions of the Constitution, has struggled to identify principles that can guide its decisions when government action is claimed to violate someone's free exercise of religion. As would be expected, most of the battles over the extent of religious freedom have involved government efforts to impose upon the practices of small groups like Mormons. Not surprisingly, government officials sometimes seem more tolerant toward the religious practices of large groups of voters.
Unpopular minority religions are especially dependent upon a constitutional guarantee of free exercise of religion. We are fortunate to have such a guarantee in the United States, but many nations do not. The importance of that guarantee in the United States should make us ever diligent to defend it. And it is in need of being defended. During my lifetime I have seen a significant deterioration in the respect accorded to religion in our public life, and I believe that the vitality of religious freedom is in danger of being weakened accordingly.
Religious belief is obviously protected against government action. The practice of that belief must have some limits, as I suggested earlier. But unless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.

Religious freedom has always been at risk. It was repression of religious belief and practice that drove the Pilgrim fathers and other dissenters to the shores of this continent. Even today, leaders in all too many nations use state power to repress religious believers.

The greatest infringements of religious freedom occur when the exercise of religion collides with other powerful forces in society. Among the most threatening collisions in the United States today are (1) the rising strength of those who seek to silence religious voices in public debates, and (2) perceived conflicts between religious freedom and the popular appeal of newly alleged civil rights.

As I address this audience of young adults, I invite your careful attention to what I say on these subjects, because I am describing conditions you will face and challenges you must confront.

A writer for The Christian Science Monitor predicts that the coming century will be "very secular and religiously antagonistic," with intolerance of Christianity "rising to levels many of us have not believed possible in our lifetimes."Other wise observers have noted the ever-growing, relentless attack on the Christian religion by forces who reject the existence or authority of God. The extent and nature of religious devotion in this nation is changing. The tide of public opinion in favor of religion is receding, and this probably portends public pressures for laws that will impinge on religious freedom.

Atheism has always been hostile to religion, such as in its arguments that freedom of or for religion should include freedom from religion. Atheism's threat rises as its proponents grow in numbers and aggressiveness. "By some counts," a recent article in The Economist declares, "there are at least 500 [million] declared non-believers in the world - enough to make atheism the fourth-biggest religion."And atheism's spokesmen are aggressive, as recent publications show. As noted by John A. Howard of the Howard Center for Family, Religion, and Society, these voices "have developed great skills in demonizing those who disagree with them, turning their opponents into objects of fear, hatred and scorn."

Such forces - atheists and others - would intimidate persons with religious-based points of view from influencing or making the laws of their state or nation. Noted author and legal commentator Hugh Hewitt described the current circumstance this way:
"There is a growing anti-religious bigotry in the United States. . . .
"For three decades people of faith have watched a systematic and very effective effort waged in the courts and the media to drive them from the public square and to delegitimize their participation in politics as somehow threatening."

For example, a prominent gay-rights spokesman gave this explanation for his objection to our Church's position on California's Proposition 8:
"I'm not intending it to harm the religion. I think they do wonderful things. Nicest people. . . . My single goal is to get them out of the same-sex marriage business and back to helping hurricane victims."
Aside from the obvious fact that this objection would deny free speech as well as religious freedom to members of our Church and its coalition partners, there are other reasons why the public square must be open to religious ideas and religious persons. As Richard John Neuhaus said many years ago, "In a democracy that is free and robust, an opinion is no more disqualified for being 'religious' than for being atheistic, or psychoanalytic, or Marxist, or just plain dumb."

Religious Freedom Diluted by Other "Civil Rights"
A second threat to religious freedom is from those who perceive it to be in conflict with the newly alleged "civil right" of same-gender couples to enjoy the privileges of marriage.

We have endured a wave of media-reported charges that the Mormons are trying to "deny" people or "strip" people of their "rights." After a significant majority of California voters (seven million - over 52 percent) approved Proposition 8's limiting marriage to a man and a woman, some opponents characterized the vote as denying people their civil rights. In fact, the Proposition 8 battle was not about civil rights, but about what equal rights demand and what religious rights protect. At no time did anyone question or jeopardize the civil right of Proposition 8 opponents to vote or speak their views.

The real issue in the Proposition 8 debate - an issue that will not go away in years to come and for whose resolution it is critical that we protect everyone's freedom of speech and the equally important freedom to stand for religious beliefs - is whether the opponents of Proposition 8 should be allowed to change the vital institution of marriage itself.

The marriage union of a man and a woman has been the teaching of the Judeo-Christian scriptures and the core legal definition and practice of marriage in Western culture for thousands of years. Those who seek to change the foundation of marriage should not be allowed to pretend that those who defend the ancient order are trampling on civil rights. The supporters of Proposition 8 were exercising their constitutional right to defend the institution of marriage - an institution of transcendent importance that they, along with countless others of many persuasions, feel conscientiously obliged to protect.

Religious freedom needs defending against the claims of newly asserted human rights. The so-called "Yogyakarta Principles," published by an international human rights group, call for governments to assure that all persons have the right to practice their religious beliefs regardless of sexual orientation or identity. This apparently proposes that governments require church practices and their doctrines to ignore gender differences. Any such effort to have governments invade religion to override religious doctrines or practices should be resisted by all believers. At the same time, all who conduct such resistance should frame their advocacy and their personal relations so that they are never seen as being doctrinaire opponents of the very real civil rights (such as free speech) of their adversaries or any other disadvantaged group.

And now, in conclusion, I offer five points of counsel on how Latter-day Saints should conduct themselves to enhance religious freedom in this period of turmoil and challenge.

First, we must speak with love, always showing patience, understanding and compassion toward our adversaries. We are under command to love our neighbor (Luke 10:27), to forgive all men (Doctrine and Covenants 64:10), to do good to them who despitefully use us (Matthew 5:44) and to conduct our teaching in mildness and meekness (Doctrine and Covenants 38:41).

Even as we seek to speak with love, we must not be surprised when our positions are ridiculed and we are persecuted and reviled. As the Savior said, "so persecuted they the prophets which were before you" (Matthew 5:12). And modern revelation commands us not to revile against revilers (Doctrine and Covenants 19:30).

Second, we must not be deterred or coerced into silence by the kinds of intimidation I have described. We must insist on our constitutional right and duty to exercise our religion, to vote our consciences on public issues and to participate in elections and debates in the public square and the halls of justice. These are the rights of all citizens and they are also the rights of religious leaders. While our church rarely speaks on public issues, it does so by exception on what the First Presidency defines as significant moral issues, which could surely include laws affecting the fundamental legal/cultural/moral environment of our communities and nations.
We must also insist on this companion condition of democratic government: when churches and their members or any other group act or speak out on public issues, win or lose, they have a right to expect freedom from retaliation.

Along with many others, we were disappointed with what we experienced in the aftermath of California's adoption of Proposition 8, including vandalism of church facilities and harassment of church members by firings and boycotts of member businesses and by retaliation against donors. Mormons were the targets of most of this, but it also hit other churches in the pro-8 coalition and other persons who could be identified as supporters. Fortunately, some recognized such retaliation for what it was. A full-page ad in the New York Times branded this "violence and intimidation" against religious organizations and individual believers "simply because they supported Proposition 8 as an outrage that must stop." The fact that this ad was signed by some leaders who had no history of friendship for our faith only added to its force.

It is important to note that while this aggressive intimidation in connection with the Proposition 8 election was primarily directed at religious persons and symbols, it was not anti-religious as such. These incidents were expressions of outrage against those who disagreed with the gay-rights position and had prevailed in a public contest. As such, these incidents of "violence and intimidation" are not so much anti-religious as anti-democratic. In their effect they are like the well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation.

Third, we must insist on our freedom to preach the doctrines of our faith. Why do I make this obvious point? Religious people who share our moral convictions feel some intimidation. Fortunately, our leaders do not refrain from stating and explaining our position that homosexual behavior is sinful. Last summer Elder M. Russell Ballard spoke these words to a BYU audience:

"We follow Jesus Christ by living the law of chastity. God gave this commandment, and He has never revoked or changed it. This law is clear and simple. No one is to engage in sexual relationships outside the bounds the Lord has set. This applies to homosexual behavior of any kind and to heterosexual relationships outside marriage. It is a sin to violate the law of chastity.

"We follow Jesus Christ by adhering to God's law of marriage, which is marriage between one man and one woman. This commandment has been in place from the very beginning."

We will continue to teach what our Heavenly Father has commanded us to teach, and trust that the precious free exercise of religion remains strong enough to guarantee our right to exercise this most basic freedom.
Fourth, as advocates of the obvious truth that persons with religious positions or motivations have the right to express their religious views in public, we must nevertheless be wise in our political participation. Preachers have been prime movers in the civil rights movement from the earliest advocates of abolition, but even the civil rights of religionists must be exercised legally and wisely.

As Latter-day Saints, we should never be reticent to declare and act upon the sure foundations of our faith. The call of conscience - whether religious or otherwise - requires no secular justification. At the same time, religious persons will often be most persuasive in political discourse by framing arguments and positions in ways that are respectful of those who do not share their religious beliefs and that contribute to the reasoned discussion and compromise that is essential in a pluralistic society.

Fifth and finally, Latter-day Saints must be careful never to support or act upon the idea that a person must subscribe to some particular set of religious beliefs in order to qualify for a public office. The framers of our constitution included a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (Article VI). That constitutional principle forbids a religious test as a legal requirement, but it of course leaves citizens free to cast their votes on the basis of any preference they choose. But wise religious leaders and members will never advocate religious tests for public office.
Fragile freedoms are best preserved when not employed beyond their intended purpose. If a candidate is seen to be rejected at the ballot box primarily because of religious belief or affiliation, the precious free exercise of religion is weakened at its foundation, especially when this reason for rejection has been advocated by other religionists. Such advocacy suggests that if religionists prevail in electing their preferred candidate this will lead to the use of government power in support of their religious beliefs and practices. The religion of a candidate should not be an issue in a political campaign.

Conclusion
It was the Christian principles of human worth and dignity that made possible the formation of the United States Constitution over 200 years ago, and only those principles in the hearts of a majority of our diverse population can sustain that constitution today. Our constitution's revolutionary concepts of sovereignty in the people and significant guarantees of personal rights were, as John A. Howard has written,
"generated by a people for whom Christianity had been for a century and a half the compelling feature of their lives. It was Jesus who first stated that all men are created equal and that every person is valued and loved by God."

Professor Dinesh D'Souza reminds us:
"The attempt to ground respect for equality on a purely secular basis ignores the vital contribution by Christianity to its spread. It is folly to believe that it could survive without the continuing aid of religious belief."

Religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of Christianity in the public square without seriously jeopardizing our freedoms. I maintain that this is a political fact, well qualified for argument in the public square by religious people whose freedom to believe and act must always be protected by what is properly called our "First Freedom," the free exercise of religion.

Legal Briefs: Sen. Reid "rips" Mormon Church, LDS Churches vandalized, Brook Wilberger

2009-10-13T10:17:00.004-04:00

Mormon Senator Harry Reid calls the LDS Church's involvement in California's Prop 8; "a waste of Church resources and good will", "the resources that went into the Proposition 8 effort could have been put to better use", the Church should be "focused on other things", "it was harmful for the Church to focus on such a divisive issue." Salt Lake Tribune. I think we should listen to Reid because if anybody knows how not to waste 'resources' and 'good will' it's the Democratic leaders of this Country.

5 LDS Churches were vandalized in Salt Lake County. Salt Lake Tribune.

Brook Wilberger family supporters gather at event. KPTV

Book of Mormon and Court Witnesses

2009-10-09T15:11:00.003-04:00

Earlier today while sitting in my evidence class an intriguing question popped into my head, has a witness ever been 'sworn-in' by placing their hand on a Book of Mormon instead of the Bible?

I searched reliable websites such as Holy Fetch but I haven't been able to find anything mentioning such a scenario. Have any of you ever heard of this actually happening?

LDS Church hires lobbying firm to help gain status in Italy

2009-10-06T16:46:00.000-04:00

Law.com is reporting that the LDS Church has taken the unprecedented step of hiring a federally registered lobbyist to help its efforts in obtaining a new legal status in Italy. The LDS Church has formed a coalition with several other denominations in an effort to lobby the Italian parliament for an intesa, or "understanding." Like many countries, Italy has different status levels for religious denominations. According to John Zackrison, former in-house counsel for the Mormon Church and now outside counsel working at Kirton & McConkie, the intesa the Church seeks would provide benefits such as a streamlined process to license Mormon ecclesiastical leaders to perform civil marriages and easier missionary visa renewals. There are also significant tax benefits, such as easier property tax exemptions and some charitable contribution deductions for individual Mormons. The intesa sought by the LDS Church would actually entitle the Church to public funds, but Zackrison says the proposed draft agreement promises that the Mormon Church would never accept such funds.

These sorts of agreements take years to achieve, particularly in countries such as Italy where the government is not known for its efficiency. Additionally, the strong presence of the Roman Catholic Church impedes acceptance of new religions, causing tradition-oriented politicians to oppose such official recognition. But now that the Mormon Church has plans for a temple in Rome, the favorable conditions of an intesa are even more important.

This is not the first time representatives of the LDS Church have lobbied government officials for various causes or issues. The Church even maintains a Public Affairs in Washington, D.C., and has public relations and legal representatives in many countries. However, this marks the first time that the Church has hired an outside firm to help it's lobbying efforts. Law.com reports Zackrison as saying: "The advice we've received is, if the U.S. government were to weigh in favor of the [agreements] in some way, that -- with the current Italian government -- could be helpful in the process . . . ." State Department spokesperson Darby Holliday says that the U.S. government hasn't spoken with the Italian government on the issue, but the apparent goal of the new lobbying arrangement is to change that.

Photo credit: Elizabeth Buie.This content is cross-posted from LDS Law.

Legal Briefs: Gilbert Temple, International Law Symposium, LDS Women in the Law

2009-10-04T11:22:00.006-04:00

Gilbert, Arizona city council OK's LDS Temple zoning changes. AZ Republic

16th Annual International Law and Religion Symposium will be broadcast live today at 7pm from the Moot Court room of the J. Reuben Clark School of Law on the campus of Brigham Young University in Provo, Utah. Click HERE to listen live.

Women in the Law: The Importance of Education for LDS Women. BYU Law

Follow the JRCLS Leadership Conference on Twitter

2009-10-01T12:54:00.001-04:00

I have just arrived in Provo, Utah for the 2009 J. Reuben Clark Law Society Leadership Conference. It is an annual two day event for the leadership of the JRCLS student chapters and JRCLS attorney leaders. Thursday will largely be made up of various committee meetings and Friday will be highlighted by Keynote Speaker—James Ferrell, author of The Peacemaker and The Holy Secret.

I will make an effort to “Tweet” about the event as often as possible so if you’re not already following us on Twitter click HERE.

Elizabeth Smart Testifies in Federal Court - Salt Lake, Utah

2009-10-01T12:40:00.003-04:00

Read the Live testimony of Elizabeth Smart from the Federal Court House in Salt Lake City, Utah. Click Here to read the testimony. After reading part of the testimony I'm convinced there isn't a hole deep enough or dark enough to throw her rapist Brian Mitchel into.

JRCLS General Conference Reception

2009-09-30T11:13:00.000-04:00

If you happen to live in Utah or will be traveling there for General Conference, you should consider attending the BYU Law School reception for alumni and J. Reuben Clark Law Society members. It is held at the Joseph Smith Memorial Building in Salt Lake City. I've always thought it would be nice to attend, but it's probably not worth the 3,000-mile drive just to have lunch. If you are interested, today is the last day for registration. Click here for details.

Legal Briefs: Main St. Plaza Signs, BU Field Trip

2009-09-28T21:38:00.008-04:00

LDS Church posts tougher rules for Main St. Plaza conduct. Salt Lake Trib.

Boston University Law School chapter of the JRCLS.
What: Firm Field Trip to Bingham McCutchen.
Who: Everyone is invited!
When: Tuesday, October 6th
Where: Meet at 4:45 in the Law Tower Lobby to ride the T over together. Dress code is Business Formal.
Why: Take advantage of a great networking opportunity and see what life is like inside of one of Boston’s largest law firms.

Legal Briefs: No alcohol waiver, Elizabeth Smart, UC Berkeley Protest

2009-09-25T09:29:00.003-04:00

LDS Church refuses alcohol waiver to Iron Gate Grill Restuarant. Herald Journal

Competency review set in Elizabeth Smart case. AP

5,000 protest at UC-Berkeley over tuition increases, increased furloughs, layoffs. Contra Costa Times

Legal Briefs: LDS Missionaries, Phoenix Temple,

2009-09-24T11:47:00.004-04:00

LDS missionaries leaving Guyana at Government request. Salt Lake Tribune

Residents express concerns on Phoenix Mormon temple proposal. Arizona Republic

2010 National Religious Freedom Moot Court

2009-09-22T21:40:00.007-04:00

2010 National Religious Freedom Moot Court
Washington, DC
February 5-6, 2010

The George Washington University Law School is proud to announce the National Religious Freedom Moot Court Competition. Religious freedom, embodied in the twin Establishment and Free Exercise Clauses of the First Amendment, is one of the fundamental guarantees of the United States Constitution and is a founding principle of our nation. The Moot Court competition will focus on a current religious freedom issue that implicates a First Amendment controversy.

This year's problem will deal with the Free Exercise Clause and the Establishment Clause. Specifically, the problem will focus on issues regarding the decisions of a local police department to regulate the activities and dress of a police officer. This year, Judge Milan D. Smith, Jr., of the U.S. Court of Appeals for the Ninth Circuit will judge the final round.

Last year's problem included issues regarding the employment decisions of religious groups in relation to state civil rights. In the past, the Moot Court's problem was described as "deliciously difficult" by the Honorable Jeffrey Sutton, of the Court of Appeals for the 6th Circuit. Previously, the winning brief was published by the Rutgers School of Law Journal on Law and Religion.

Past judges of the competition include:
* Honorable Jeffrey Sutton, United States Court of Appeals for the 6th Circuit.
* Honorable Diarmuid O'Scannlain, United States Court of Appeals for the 9th Circuit.
* Honorable Kent A. Jordan, United States Court of Appeals for the 3rd Circuit.
* Honorable John M. Rogers, United States Court of Appeals for the 6th Circuit.
* Kevin "Seamus" Hasson, Founder and Chairman of the Becket Fund for Religious Liberty.
* Martin S. Lederman, Former Attorney Advisor in the Department of Justice's Office of Legal Counsel from 1994 to 2002.

The competition is open to all 2L/3L/4L students from ABA-accredited law schools. Registration opens September 15, 2009 and must be completed by November 6, 2009.

Please join us next February as distinguished judges and skillful students from across the country consider an innovative and challenging problem in the field of religious freedom.

For more information and to register, please visit our website at: http://www.religionmootcourt.org/

Remains of abducted BYU student found

2009-09-22T11:03:00.000-04:00

Authorities in Corvalis, Oregon, announced yesterday that they had found and identified the remains of Brooke Wilberger, a 19-year-old BYU student who disappeared in the Spring of 2004. At the time of her disappearance, Wilberger had been helping her sister clean the lamp posts of the apartment complex her sister and brother-in-law maintained near the Oregon State University campus.

The case was unusual in that a search commenced almost immediately. Law enforcement officials usually wait a few days before searching for a missing adult because adults have the autonomy to come and go as they please, but the Corvalis authorities agreed with family members that the straight-laced BYU coed was not the sort of young woman to disappear on her own. Despite the early and large-scale search and national headlines, Wilberger was not located no one reported having seen her.

Another unusual element of the case was the fact that Wilberger's long-time boyfriend was immediately ruled out as a suspect. Significant others are frequently prime suspects in disappearance cases, but Wilberger's boyfriend had an iron-clad alibi: he was in Venezuela serving as a Mormon missionary.

Eventually the investigation led to Joel Courtney, who was already doing 18 years in New Mexico for the kidnapping and rape of a college student in that state. Wilberger's DNA and hairs were found in Courtney's van, and Courtney was to go on trial in 2010 for the kidnapping and attempted rape and murder of two other Oregon State coeds, an incident that occurred on the same day Wilberger disappeared.

Yesterday Joel Courtney entered a guilty plea for the aggravated murder of Brooke Wilberger in order to avoid the death penalty. He received a life sentence without parole. As part of his plea, Courtney disclosed the location of Wilberger's body, which police later confirmed. Courtney's plea provides some closure to Wilberger's family, who have waited more than five years to know what happened to their daughter.

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2008-12-19T00:00:00-08:00

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