Category: Law

The Reynolds Jury Charge

The trial court in Reynolds v. United States gave the following jury charge, which the Supreme Court later found was proper and not inflammatory. I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children, innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land. It’s a fascinating snapshot of the ideas and prejudices of the time — Note that polygamy (or is it the church itself?) is referred to as “this delusion.” The jury, not surprisingly, convicted, leading to the Supreme…

Dead Man Walking

Sister Helen Prejean, a Catholic nun, published Dead Man Walking in 1993. I am just finishing the book, which reinforces my long-held disdain for the death penalty. I have not seen the movie, but the book is a powerful accounting of Sister Helen’s experiences counseling death-row inmates in Louisiana.

Mormonism and Quetzalcoatl in Court

While we’re on the topic of court decisions about the church, it’s always fun to mention the Ninth Circuit’s ruling in Alvarado v. City of San Jose, 94 F. 3d 1223 (1996). The plaintiffs in that case sought to enjoin the installation (and later, force the removal) of a Quetzalcoatl statue, on the grounds that, inter alia, it violated the California Constitution because it promoted Mormon beliefs. The court dismissed the claim, noting: While Mormons are clearly a recognized religious group, the evidence presented by the plaintiffs does not support a First Amendment argument. The writings suggest that, according to certain Mormons, ancient worshippers of Quetzalcoatl were in fact worshipping Christ. Historically, Mormon missionaries taught that Christ had revealed himself to native Mesoamericans in the form of Quetzalcoatl or the Plumed Serpent long before he appeared to man in the human form known to Christians. This attribution of Christian or Christ-like qualities to ancient religious symbols and practices does not,…

The Book of Mormon in Court

I think that most people know that passages from the Bible pop up from time to time in judicial opinions. For example, many old common law rules turned on the distinction between acts that were malum in se (that is wrong in and of themselves) and malum prohibitum (that is wrong simply because they are legally proscribed). The Ten Commandments were regularly used as a touchstone in making this distinction. The question presents itself: What sort of a life – if any – has the Book of Mormon led in the pages of the court reporters?

“On Equal Grounds”

The story of Korihor in Alma 30 contains many lessons for the modern audience. Perhaps not surprisingly, the most interesting part of the chapter to me is the discussion of law in verses 7-11. In particular, this discussion is bookended by the concept of equality: 7. “Now there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds.” 12. “… Nevertheless, there was no law against a man’s belief; therefore, a man was punished only for the crimes which he had done; therefore all men were on equal grounds.” In an earlier post, Jim Faulconer asked a question that I would like to revisit here: What does it mean to be “on equal grounds”?

UofU and Theatre Student Settle

Christina Axson-Flynn’s lawsuit against the University of Utah garnered lots of attention, but I am not sure that we have discussed it here. The events took place in 1998, and revolve around Axson-Flynn’s experience in the University of Utah’s Actor Training Program (ATP). When she refused to use vulgar and profane language, her instructors pressured her to “get over it.” In the face of her refusal to change her views, the instructors escalated the pressure, and she ultimately decided to leave the program. In the wake of her withdrawal, she sued the University and her instructors for violating her First Amendment right to refrain from speaking and for violating her free exercise rights under the First Amendment. After losing both claims on the defendant’s motion for summary judgment in the U.S. District Court, Axson-Flynn won a double reversal at the 10th Circuit Court of Appeals. This entitled Axson-Flynn to pursue the lawsuit in the District Court, but earlier this week,…

Constitutional Turnabout

According to reports this week, the leadership of the United States Senate is currently considering whether to bring to a vote a proposed constitutional amendment to define the nature of marriage. There is widespread agreement that the proposal lacks the necessary votes to pass, suggesting that the vote is primarily intended to make a political issue of the proposed amendment’s subject matter during an election year. Still, many constituencies remain highly exercised over what they perceive to be the necessity of such an amendment to resolve the matter of single-sex marriage. Curiously, these constituencies seem largely to be the same as those that vehemently opposed the passage of a different constitutional amendment — the Equal Rights Amendment — some thirty years ago. At the time, opponents of the Equal Rights Amendment claimed that use of the constitutional amendment process to address the purposes of the proposed amendment was both unnecessary and unwise

Oops — I forgot

The judicial nomination of Thomas Griffith, General Counsel of Brigham Young University and Bush appointee to the D.C. Circuit Court of Appeals seems to have hit a slight snag — as reported by this morning’s Washington Post, Griffith appears to have been acting as the University’s chief legal officer without the little detail of a license to practice law. Apparently Griffith’s admission to the District of Columbia bar lapsed for failure to pay his dues, and he never quite got around to sitting for the Utah bar. Highly embarassing, but perhaps not fatal to the nomination if no one’s out for blood during the confirmation process.

The Criminal Law of Deseret

On January 16, 1851, the legislature of the State of Deseret passed a 34-section law entitled “Criminal Laws of the State of Deseret.” It actually makes for interesting reading. In 1851, the Mormons had been in Utah for only four years. The Territory of Utah had been formed in 1850, but federal authority in Utah was weak to completely non-existent. It would be another six years before any serious outside authority in the form of Johnston’s Army arrived. In other words, Mormon theocracy was firmly in the saddle, the real legal authority was clearly the State of Deseret and not the Territory of Utah, and Mormon political independence was probably as nearly complete as it has ever been. Hence, the laws that they chose to pass are particularly interesting as an insight into Mormon theocratic ambitions.

Fruity Con Law at Meridian

The ever exciting Meridian Magazine has been running a series of articles that purport to be “Constitutional Primers,” explaining to Mormons the way that the constitution functions. The most recent one argues that what is known as “selective incorporation” under the 14th amendment is a mistake. This doesn’t sound all that interesting or exciting, but it actually is. I promise.

Some More Thoughts on Oaths

As I have a tendency to do, I have been reading law today. In particular, I came across a case dealing with the old rule against party testimony. Originally at common law, a party to a lawsuit could not testify in the suit. There were two justifications for the rule. The first was that the parties to a suit had an incentive to lie in their own interested and therefore their testimony was unreliable. The second justification was that testimony was given under oath, which gave it grave theological significance. Perjury was more than a crime. By virtue of the oath it was a grave sin for which one could be damned. The sin was not lyng per se, but rather oath breaking. The judges reasoned that the law should not present parties to litigation with such a grave temptation. Much better to do without party testimony and not risk people damning themselves.

Mormon Nominated to D.C. Circuit

For those who follow such things, President Bush has just nominated Tom Griffith, current general counsel for BYU, to the United States Court of Appeals for the District of Columbia. For the non-law geeks of the universe, the D.C. Court of Appeals is an intermediate level appellate court (just below the Supreme Court) and after the Supreme Court it is widely regarded as the most important court in the United States, frequently serving as a training ground for Supreme Court justices. (Three of the nine current justices — Scalia, Thomas, Ginsburg — previously served on the D.C. Court of Appeals.) If confirmed, Griffith, to my knowledge, would be the first Mormon to serve on the Court and (in informal terms) the highest ranking Mormon ever in the federal judiciary. Tom graduated from BYU, worked for several years as a CES director before going to law school at Virginia. Prior to taking his current job at BYU, he was Senate Legal…

Arresting Ministers

The State of New York is charging two Unitarian Universalist ministers with a misdemeanor for solemnizing a marriage without a liscense. (Story here) The Unitarians have long granted gay couples religious unions, but they have not exercised the power delegated to them by the state to create legal marriages. Given the ubiquitious comparisons between the gay marriage legal kerfuffle and the anti-polygamy crusades, is there a parallell here?

Civic Religion – Again

For those not aware of the fact, the Supreme Court handed down its decision in Locke v. Davey a few hours ago, holding that it did not violate the Free Exercise Clause for the State of Washington to exempt divinity degree applicants from an otherwise available scholarship fund. I am not going to comment here on the opinion itself, but there was a line from Justice Scalia’s dissent that brought to mind an earlier discussion here at T&S on civic religion.

Mormons and Lord Devlin

When Mormons get up set about things like abortion, pornography, SSM, constitutional prohibitions on anti-sodomy laws, and the like they frequently talk about how these kinds of developments threaten to undermine society’s “moral fabric.” However, I don’t think that we have been sufficiently reflective about this rhetoric. I think that Lord Devlin can help us understand why.

Chaplinsky in Zion

According to the Deseret News, Salt Lake City Mayor Rocky Anderson is considering a city ordinance that would ban some of the more extreme street preaching around Temple Square.

Office, Oaths, and Sins

I work as a law clerk for a federal appellate judge. As part of my work, I routinely assist in the enforcement of legal rules that I think are unwise or even unjust. Of late I have been wondering about the morality of what I do every day.

Justice for Fornicators

The extended discussion of Matt’s last post has got me thinking about abortion. I freely admitt that this is not a subject that I have actually spent a lot of time on, so I can’t claim that what follows is informed by either deep reading or deep thinking. What I have tried to do is put together an argument that makes sense out of the Church’s somewhat modified pro-life position, i.e. no abortion with limited exceptions of for rape, threats to life, etc. Warning, what follows contains a fair amount of pseudo-philosophical rambling.