Category Archives: Legal

Interesting commentary on the US District Court ruling on DOMA

Belief systems, Current events, LDS Doctrine, LDS History, LDS Society, Legal, Main, Modern Civilization, Polygamy

The Defense of Marriage Act, passed by the US Congress in 1996, defines marriage as being solely between “a man and a woman”. Judge Joseph Tauro of the US District Court of Massachusetts just issued a ruling striking down the DOMA as unconstitutional. In so doing, he apparently stated that

DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage – or any other core concept of domestic relations, for that matter.

Charles Lane, over at the Post Partisan blog of the Washington Post, responds by saying, in effect, “Uh, no.”

During the 1856 presidential campaign, the Republican Party platform had accused the Democrats of countenancing “those twin relics of barbarism–polygamy and slavery” and declared it the “duty of Congress to prohibit” both evils in the territories. Buchanan’s expedition was intended to prove the Republicans wrong. It succeeded only in provoking a few inconsequential clashes between armed Mormons and U.S. soldiers.

Congress subsequently adopted three increasingly harsh criminal bans on bigamy and polygamy in the territories: in 1862, 1882 and 1887. The Supreme Court upheld these laws repeatedly against Mormon challenges alleging, among other things, that they violated religious liberty. The 1887 law, the Edmunds-Tucker Act, abrogated the Mormon Church’s corporate charter and confiscated its property, on the grounds that its leaders encouraged polygamy.

The Supreme Court said that was okay, too. Echoing the majority opinion of the day, the court recoiled in frank horror at a practice the Mormons believed was ordained by God — but which the justices considered a “crime against the laws and abhorrent to the sentiments and feelings of the civilized world.” They compared it to human sacrifice. . . .

So it is a bit misleading to say, as Tauro does, “every [historical] effort to establish a national definition of marriage met failure.” Washington’s triumph over Mormon polygamy, made permanent in a national statute, would seem to qualify as a federal definition of marriage, at least in the sense of what marriage is not.

To be sure, Tauro emphasizes that the states have always had exclusive authority over marriage. Utah was a territory at the time of Washington’s effort to stamp out polygamy, and the constitution gave the federal government paramount authority over territories, including their domestic legislation. (That is why, technically, the anti-polygamy laws aimed at Utah also applied to Arizona, Oklahoma, Alaska and the District of Columbia.) Congress functioned, in effect, as the super-legislature for each territory.

Yet what is noteworthy about the Utah case is that Congress leveraged its power over Utah the territory into power over Utah the state. As a condition of admission to the Union, Utah’s people gave Congress a permanent veto over their marriage laws – a veto that remains on the books to this day. The fact that today’s Mormons are proponents of heterosexual monogamy and opponents of same-sex monogamy, is deeply ironic, but legally irrelevant.

What’s more, Utah is not the only state in which this situation obtains. The language of the Utah Enabling Act was repeated, word-for-word, in the laws that admitted New Mexico, Arizona and Oklahoma as states in the early 20th Century. In short, the federal government has shared authority over the marriage laws of four U.S. states.

Now, I have long been amused by those who state that efforts to allow gay marriage would have no impact on efforts to allow plural marriage. It has always struck me that any successful legal argument allowing gay marriage would have to, of necessity, allow plural marriage — I have yet to see a convincing argument to the contrary, particularly since plural marriage has a much deeper and broader history worldwide (including current active practice, particularly in Islamic and African cultures) than gay marriage does.

If Judge Tauro’s ruling is upheld, it would be interesting to see whether legal challenges to the Federally-mandated Arizona laws might arise from one of the polygamous religious groups therein (Arizona being, in my opinion, the most likely candidate for such an effort). Since Judge Tauro’s ruling does indicate that states can define marriage on their own, such an effort could be quickly ended by a de novo state law banning plural marriage (and for all I know, such a law already exists). But we continue to live in interesting times.  ..bruce..

A sticky wicket: the Church and illegal immigration

Church administration, Current events, LDS Society, Legal, Main, Missionary work

From the Salt Lake Tribune comes this, well, awkward article for the Church:

The arrest of an undocumented immigrant returning last week from his LDS mission has sparked discussion at the highest levels of the church about how to limit such exposure in the future.

“With the known realization that those risks exist, then we want to do better, or at least learn more,” LDS apostle Jeffrey R. Holland, said Friday during an interview with The Salt Lake Tribune . “We want to be more precise, if we can, about how to help, how to make [a mission] the calmest, most spiritually rewarding experience for everybody.”

Early last week, a missionary was detained at the Cincinnati airport for “lacking necessary documentation to board his flight home,” according to Michael Purdy, LDS Church spokesman.

That triggered fears in the undocumented LDS community in Utah, and already prompted a change in how one Utah missionary returned home. The young man, a Salt Lake Valley resident, completed a mission in Oklahoma and was scheduled to return home two days after church leaders heard of the unrelated arrest in Ohio. The mission president contacted local Utah church leaders, and it was decided the missionary’s uncle would drive out to Oklahoma to bring the missionary home, which he did.

The travel department of the church has to rethink everything. Things have changed, and they need a whole new policy,” said a local church official who was aware of the situation. “With ICE [Immigration and Customs Enforcement] hitting them at the bus terminals and airports, this opens a whole new discussion. I don’t know how many undocumented immigrants we have serving missions, but I’m sure this is going to repeat itself.”

The subject of the Church and proper immigration documentation comes up on a regular basis, given that the Church has missionaries in roughly 150 countries. But this is here in the United States, and it involves calling young men and women who are here in the US illegally to serve missions.

I don’t have a lot of sympathy for this practice. My own mission (Central America Mission, 1974-74) covered four countries — Honduras, Nicaragua, Costa Rica, and Panama — plus the Canal Zone, then US territory under lease from Panama. (We couldn’t actually proselyte within the Canal Zone itself, though we could teach Zonians who were referred by members, etc.). If I had been found without the proper visa at any time in any of those countries (outside of a few days’ slack when leaving), I would have at best been deported or escorted to the border. At worst, I would have been thrown into jail or prison — and believe me, you wouldn’t have wanted to spend time in any Central American jail or prison in the early 70s.

The varying laws in those countries limited how long missionaries could stay in a given country. For example, in Panama, my visa was only good for three months. So at the end of three months, I had to take an all-day bus ride from Panama City to the Panama-Costa Rica border, get a short-term visa to enter Costa Rica, walk across the border, spend the night in Costa Rica, get a new Panamanian visa in the morning, walk back into Panama, and then take an all-day bus ride back to Panama City. In at least some (and I believe all) of the countries, you had to show an outbound airline ticket before you were allowed to enter the country. And in Nicaragua, before you could leave the country you had to go to a police station and get what was called a paz y salvo — a document that showed you still had a valid visa and weren’t currently wanted for any crimes or lawsuits.

I know that all this juggling was a headache for the mission president. In addition to all the various visa length restrictions (3 to 6 months), some countries had restrictions on who they would let in. Honduras wouldn’t allow any missionaries from El Salvador because the two countries were still technically at a state of war with each other over a soccer game. (No, really.) Panama would only allow missionaries from the US; Panama was far and away the richest country in Central American, and they didn’t want missionaries from nearby countries to stay behind when their visas expired and, well, immigrate illegally.

Still, our mission presidents (Pres. Hunsaker, followed by Pres. Eager) worked carefully to stay within those laws and to act quickly when a problem arose . I spent the last three months of my mission in the mission office, during the transition between presidents, so I was fully aware of all the immigration problems and issues, and the efforts to deal with them.

Back to present day and circumstances: I think the Church is creating a difficult legal situation for itself by continuing to call illegal immigrants to serve missions within the US. This is far more than a problem with a missionary having a lapsed or perhaps questionable (e.g., student) visa; this involves young men and women who are here in the US illegally from the get-go and who are subject to arrest or detention (and possible deportation) at any time.

Thoughts?  ..bruce..

Madoff syndrome strikes California Mormons

Economy, LDS Society, Legal, Main, News

Comes this news from California:

FOLSOM, CA – A Folsom investment firm that allegedly ran a $40 million Ponzi scheme drew largely from members of the Church of Jesus Christ of Latter-Day Saints, according to federal investigators.

Equity Investment Management and Trading, Inc. was headed up by Anthony Vassallo, 29. A professional networking Web site indicates Vassallo attended Brigham Young University between 1998 and 2003.

The alleged Ponzi scheme came to light Wednesday when the Securities and Exchange Commission filed a civil complaint in Sacramento federal court seeking to seize assets held by EIMT and levy fines against Vassallo and company vice president Kenneth Kenitzer, 66, of Pleasanton.

The complaint claims as many as 150 victims, drawn largely from Vassallo’s religious community, invested $40 million between May 2004 and November 2008.

One on those alleged victims is Kevin Stillion, 38, of Rancho Murieta, who said he gave Vassallo his life savings of $120,000 to invest in April of 2008.

“We know that we do have an account that does have some money in it, but it’s less than two percent or one percent,” Stillion said.

Here’s the corresponding press release from the US Securities and Exchange Commission.

Much has been written about Utah being the fraud capital of the US, though I suspect the various post-collapse frauds that are coming out (starting with Bernie Madoff’s Ponzi scheme, but certainly not ending there) make anything done in Utah look penny-ante. But there is a confluence between two pervasive concepts in Mormon society that feeds into such fraud:

  • I can trust fellow Mormons professionally
  • God will bless me financially if I pay my tithing, etc.

Contrary to what we may think, this is not unique to LDS society. Part of what has come out in the wake of the Madoff scandal is how many of his victims were Jews and Jewish organizations that felt they could trust Madoff because he was Jewish. As one of the earliest AP reports noted:

Investors big and small were swindled, from Florida retirees to celebrities such as Steven Spielberg, actor Kevin Bacon and Hall of Fame pitcher Sandy Koufax. Many of Madoff’s victims were Jews and Jewish charities, which trusted him because he is Jewish. Those cheated included Nobel Peace Prize winner and Holocaust survivor Elie Wiesel.

But back to the Vassallo scheme. Here’s what should have sent big warning bells off for anyone, LDS or not, who was considering investing (emphasis mine):

Investigators said investors were lured with the promise of monthly returns as great as 3.5 percent.

This is exactly the same thing that Madoff used to get his investors, though his standard pitch was a mere 1 percent/month (the FBI does say he did make some claims of annual returns approaching 45 percent, but the 1%/month figure shows up most often). That claim alone should have been enough to warn people away, particularly in an era where you’re lucky if your money market account offers a 3.5% annual return on saving.

But here’s the real kicker (again, emphasis mine):

Stillian [one of the victims] said he is not a member of the LDS church, but has Mormon friends who introduced him to Vassallo. “It was all about friends and family and trust,” he said, adding, “I sat there in his office and he showed me the returns,” Stillian said.

Dating all the way back to my undergrad years at BYU, I have made it a matter of standing policy that whenver anyone tries to get money from me (selling me something, investing, etc.) and brings the Church or related issues into it, my response is an automatic and irrevocable “No.” Any appeal to Church membership, Church authorities, personal claimed worthiness (“When I was in the temple the other day…”), etc., is a big red flag that the pitch being made cannot stand on its own merits.

The sad thing is that most Mormons are honest in their dealings with others, including their fellow Mormons. Tthat’s what makes the occasional fraud like this both effective and devestating. Those who take advantage of that trust are truly wolves in sheep’s clothing. Like the moneychangers in at the temple in Jerusalem, they turn the house of God into a den of thieves — but, unlike the moneychangers, they do so having sworn a solemn oath to take Christ’s name upon themselves.  I for one would not want to be in their shoes when they face the Savior’s wrath.  ..bruce..

A people set apart: Mormons and Prop 8

Current events, LDS Doctrine, LDS History, LDS Organization, LDS Society, Legal, Main, Media, Politics

There has, of course, been much discourse on the bloggernacle about Proposition 8 in California and the Church’s involvement in it. Leaving aside the various arguments on the merits of gay marriage itself, the merits of the arguments on both sides of Prop 8, and the merits of the Church’s involvement in passing Prop 8, I was struck by a different thought today:

It may well be that God inspired Pres. Monson to take this approach to put all of us within the Church in a difficult position.

I am struck as I read through the ‘nacle at the number of posts that in one way or another express the thought, “Why can’t we be more like other churches and/or society at large?” This shows up in any number of ways, but I see it time and again. Often it’s a fervent wish that we would do away with one or more Church practices, doctrines, or historical events (missionary program, tithing, Word of Wisdom, garments, temple recommends/restrictions, the First Vision, priesthood restoration, the endowment, all-male priesthood, lay ministry, succession in the Church presidency, etc.). It certainly has shown up in the discussions on Prop 8, where the most recent post I read today used the word “fiasco” to describe the Church’s (successful) effort to support Prop 8.

My own reading of both Church and scriptural history suggests that the Lord often requires of His people practices and beliefs that prevent easy assimilation into the surrounding culture. And assimilation is what a lot of us would like. We’d like to fit in, to not have people look at us funny, to not have to explain about gold plates and special underwear. We’d like people to admire us unreservedly for being Latter-day Saints and to welcome us into their embrace, whether secular or ecumenical.

Ain’t gonna happen, at least not in my opinion. In fact, the way I read the scriptures, the gap is going to widen, not shrink. And we really are going to have to decide where our loyalties lie, regardless of our opinions about the merits of Prop 8 and/or gay marriage in general.

Of course, I find it funny and ironic that some of the same ‘naclites who complain about the Church doing this or that for “PR purposes” are now complaining about what a “PR disaster” the Church’s support for Prop 8 is.  Examine again the educational level and professional accomplishments of those who comprise the First Presidency and the Quorum of the Twelve. Do you really think these people weren’t clearly aware of just what would happen with the Church throwing such active support behind Prop 8? What they did, they did with the full knowledge and expectation of what the backlash would likely be, both short term and long term. After all, the Church had already been through this thirty years ago with the Equal Rights Amendment; President Monson and Elders Packer and Perry were in the Twelve back then as well, while several other Apostles (Ballard, Wirthlin, Scott, Hales) were General Authorities as well. That opposition was a constant news item and source of controversy not for days or weeks, but for months and years.

For that matter, those exact same individuals were likewise present for and involved in the Church’s decision to change its policy regarding blacks and the priesthood; I’d strongly recommend reading Edward Kimball’s 80-page article on that decision in the latest issue of BYU Studies (vol 47, no. 2).

And yet the Church took its activist stand for Prop 8 anyway. I think that actually argues for this being an inspired decision, because a purely rational one — from the sense of acceptance by society at large — would be at most to issue a simple disapproval.

In short, while any of us can (and clearly many do) disagree with the Church’s actions in this matter, I think it’s foolish and contrary to the facts to claim that Church leadership went into this decision out of fear, bigotry, and/or short-sightedness. I suspect it required very careful deliberation, discussion, and prayer — not to mention serious legal and political advice — and that they made the decision with eyes wide open as to the almost-certain backlash.

The real question is, how do we deal with our own feelings, particularly those who disagree with the Church’s actions? Even if we believe the decision to be a mistake, if our decision is to publicly criticize and excoriate the Church and its leadership, then what mercy and treatment do we expect from Christ (or, for that matter, from Church leaders and members) for our own follies, mistakes, and weaknesses? As I wrote back in 1994:

What is critical in this process [i.e., dealing with what we see as errors by Church leaders] is that it should be done with the same confidentiality, sensitivity, understanding, patience and forgiveness — in short, the same Christ-like behavior — with which we would desire our own imperfections and errors to be handled. The Savior taught that “if they brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother.” (Matt 18:15) The Savior goes on to say that if that brings no results, we should inform the Church — which I would interpret as meaning the appropriate divinely-appointed stewards, not our circle of friends, the members of our ward, or the readership of Sunstone and Dialogue [not to mention the entire Internet]. We would probably be outraged, and rightly so, if we found that a church member — much less a church leader — was publicly criticizing our performance in our church duties; we’d even be upset over private criticism, if it was shared with those not involved in the situation. Yet all too often, we feel little compunction — and, worse yet, a great deal of self-righteous satisfaction — about doing the same, whether privately, over the net, in print, or even over the pulpit or lectern.

Given the above, the idea of a “community response” [by Latter-day Saints] to the statements, decisions and actions of church leaders is as appalling and inappropriate as would be a “community response” — complete with private discussion and correspondence, newspaper ads, public lectures and published articles [and again, blog postings] — as to how well any one of us is carrying out his or her stewardships within the Church and within his or her family. It ignores the dignity of the individual, and commandments toward charity, tolerance and forgiveness, and the channels which the Lord set up to deal with these issues. I suspect the Lord will not justify us in such a course, and that — whatever the errors of those we criticize — upon us will remain the greater condemnation.

As always, your mileage may vary.  ..bruce..

Texas Supreme Court orders FLDS children back home

Belief systems, Current events, Legal, Main, Polygamy

In a ruling that likely surprises no one except for the Texas department of Child Protective Services, the Texas Supreme Court has ordered that all 440 children removed from the FLDS Yearning for Zion compound be returned to their parents:

The Texas Supreme Court has ruled that the children taken from a polygamist sect’s ranch should be returned to their parents, saying child welfare officials overstepped their authority.

The high court on Thursday affirmed a decision by the appellate court last week, saying Child Protective Services failed to show an immediate danger to the children.

The ruling directs a lower-court judge to reverse her decision putting the children into foster case. The appeals court ordered the judge to return the children to the parents soon but it is unclear exactly when that will happen.

While I don’t agree with FLDS doctrine or culture, I do think that it’s pretty clear that TCPS seriously overstepped its authority and profoundly botched this whole issue.

Here’s the actual Texas Supreme Court decision (PDF; hat tip to The Volokh Conspiracy).  ..bruce..

Church Handbook of Instruction posted online

LDS Organization, Legal, Main, Technology

…but not legally. Wikileaks, a website devoted to publishing confidential materials, has posted the 1968 and 1999 versions of the LDS Church Handbook of Instructions. The Church has responded by sending Wikimedia a takedown notice for copyright infringement.

On the one hand, I’m not sure why the Church has felt it necessary to keep the CHI under such tight controls. I’ve served twice in bishoprics and multiple times in other callings that have given me access to some or all of the CHI, and there really isn’t anything there that (IMHO) is or needs to be confidential. Frankly, I think the Church should have a fully hyperlinked version of the CHI at the LDS.org website, but that’s their decision, not mine.

On the other hand, I fully understand the Church’s legal need to pursue the copyright infringement issue simply as a matter of guarding its copyright over the material — namely, because failure to do so may reduce the copyright protection of the original material.

Hat tip to Slashdot.  ..bruce..