In 2009, I counted around 50 federal and state court opinions involving the LDS Church and its members. (This does not include cases where the Church is named in a cited opinion and where the Church or its members were not otherwise involved in the controversy). This count is slightly down from prior years; in 2007 and 2008, there were 71 and 63 cases, respectively. Many of these 2009 cases fall neatly into the various topics I have been writing about over the past few months.

My September 12, 2009 post, “The Surprising Truth About Mormon Employment Discrimination,” for example, noted that the LDS Church differs from the Jehovah’s Witnesses and the Seventh-Day Adventists because most of its employment discrimination cases involve Mormon employers. Put another way, where the LDS Church is mentioned in employment discrimination cases, it is generally a Mormon alleged as the discriminator (against non-Mormons), rather than an aggrieved Mormon employee who is suing a non-Mormon employer. This is not yet true of the other two American faiths.

This past year followed this trend. I counted four employment discrimination cases in 2009 that mention Mormonism. Three of these involved Mormon supervisors who, it was claimed, engaged in religious discrimination against non-Mormons. Aga v. Winter, 2009 WL 4406086 (D.Haw. December 1, 2009); DeFreitas v. Horizon Inv. Management Corp., 577 F.3d 1151, 2009 WL 2482030 (10th Cir. August 14, 2009); Webb v. ATK Thiokol Inc., 2009 WL 2043853 (D.Utah July 7, 2009). The fourth mentioned the LDS Church in its facts but did not fall into this pattern. It involved a plaintiff who claimed that his colleagues were harrassing him, by teasing and name-calling, and by signing him up for visits from Mormon missionaries and to receive Nazi literature. McWhorter v. Miller, Einhouse, Rymer & Boyd, Inc., 2009 WL 92846 (M.D.Fla. January 14, 2009).

In “Overseas Persecution of Mormons: A Comparative Analysis” (September 5, 2009), I examined cases in which alien Mormons sought to stay within the U.S. by showing a well-founded fear of religious persecution in their homelands. The year 2009 saw only two cases of Mormon asylum-seekers. Terreros-Guarin v. Holder, 2009 WL 4282847 (10th Cir. December 2, 2009)(Mormon who feared being sent to Colombia); Xue Zhi Chen v. Attorney General Of U.S., 2009 WL 3367628 (3rd Cir. October 21, 2009)(Mormon investigator who feared being sent back to China). This could be good news for people who think about Mormonism: it might be a sign that fewer of the LDS faith are being persecuted abroad.

The year 2009 saw more Mormons doing nasty things, the title of my September 9, 2009 post, which asked whether Mormons are more likely to engage in crime than members of other similar religions. This past year saw some Mormon murders and an LDS rapist. Sayres v. Walker, 2009 WL 1834310 (C.D.Cal. June 24, 2009); Forrest v. State, 290 S.W.3d 704, 2009 WL 1674922 (Mo. June 16, 2009); People v. Carpenter, 2009 WL 776113 (Cal.App. 4 Dist. March 25, 2009). Other criminal cases involved Mormon victims. People v. Avila, 46 Cal.4th 680, 2009 WL 1651379 (Cal. June 15, 2009); State v. Marchet, 219 P.3d 75, 2009 WL 2960392 (Utah App., September 17, 2009).

There were several Mormon prisoners who took to the courts in 2009, a phenomenon I described in “What Mormon Prisoners Want” (September 16, 2009). Ramirez v. Ferguson, 2009 WL 3158205, (W.D.Ark., September 28, 2009); Barhite v. Caruso, 2009 WL 440682 (W.D.Mich. February 23, 2009); Blount v. Echols, 2009 WL 1110815 (W.D.Ark. April 24, 2009). Another prisoner claimed that the Utah Board of Pardons shows favoritism towards Mormon sex offenders. Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir. September 28, 2009).

How did Mormons fair in family court this past year? Mormons were involved in some ugly divorces in 2009. In re Marriage of Mataele and Brittain, 2009 WL 1264069, Cal.App. 4 Dist., May 08, 2009); DeLay v. Larsen, 150 Wash.App. 1003, 2009 WL 1178512 (Wash.App. Div. 1 May 4, 2009). As I discussed in “Family Court, Mormon Style” (September 30, 2009), however, there is relatively little anti-LDS animus exhibited by judges in divorce and custody disputes. Instead, family courts tend to view Mormonism as a source of family stability. Jarnagin v. Jarnagin, 2009 WL 4639740 (La.App. 3 Cir. December 9, 2009); In re R.N., 178 Cal.App.4th 557, 2009 WL 3353630 (Cal.App. 2 Dist. October 20, 2009); In re K.M., 2009 WL 2737532 (Cal.App. 1 Dist. August 31, 2009).

In “Bringing Out the Delusional” (September 19, 2009) I asked whether the Church tends to bring out the delusional in some people. The most high-profile alleged delusional in Mormondom who was in court this year was almost certainly Brian David Mitchell, Elizabeth Smart’s abductor. U.S. v. Mitchell, 2009 WL 3837222 (D.Utah November 16, 2009). Some other less famous litigants rolled out some strange theories. Frank G. Fox believes that LDS Church employees are cyberstalking him, harrassing him through electronic communications. Fox v. Tippetts, 2009 WL 3790173 (W.D.La. November 10, 2009); Fox v. Eyring, 2009 WL 675355 (D.Utah March 12, 2009). Roland Cooke maintains that the Mormon Church and the FBI confiscated hundreds of millions of dollars of his property in violation of the Constitution. Cooke v. Federal Bureau Of Investigation, 2009 WL 3188470 ( D.Ariz. September 29, 2009); Cooke v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2009 WL 2450478 (D.Ariz. August 11, 2009). Paul Desfosses believes there is a grand criminal conspiracy involving the LDS Church, several IRS officers, Idaho Democratic party officials and politicians, including former U.S. Representative Richard H. Stallings, former Idaho Supreme Court Justice Robert C. Huntley, former United States Attorney Thomas E. Moss, and Chief United States District Judge B. Lynn Winmill, who worked together in an effort to “destroy Congressman George Hansen.” Desfosses v. Keller, 2009 WL 3109814 (D.Idaho September 22, 2009)

Finally, there are indications that the bad news will continue in light of the growing Mormon sex abuse scandals (September 23, 2009). Mormon pedophiles were charged, and the Church is being sued by people who claimed it was negligent in not redressing child molestation about which it should have known. State v. Archibeque, 2009 WL 4840740 (Ariz.App. Div. 1, December 15, 2009); Kathleen B. v. Shubeck, 2009 WL 4647873 (Cal.App. 4 Dist. December 9, 2009); Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 2009 WL 2438419, (Cal.App. 4 Dist. August 11, 2009); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 2009 WL 2132722 (D.Or. July 10, 2009); In re Detention of Andrews, 150 Wash.App. 1007, 2009 WL 1212039 (Wash.App. Div. 2 May 5, 2009).

In addition to these cases, there were a couple of curiosities that did not fit into the categories about which I have written.

The FLDS Church was in the news, and it was similarly in the courts. An excommunicated FLDS member got in trouble for sending threatening communications to the IRS (U.S. v. Barlow, 2009 WL 2516843 (10th Cir. August 19, 2009)), and a major Salt Lake City law firm was disqualified from being involved in the disposition of the FLDS assets. Snow, Christensen & Martineau v. Lindberg, 2009 WL 3584003 (Utah November 3, 2009).

At the University of Florida, where the University of Utah’s former President and football coach are both employed, the Beta Chi Upsilon fraternity sued to protect its right to exclude non-Christians from membership. (The fraternity maintains that Mormons were not Christians.) Beta Upsilon Chi Upsilon Chapter at the University of Florida v. Machen, 586 F.3d 908 (11th Cir. October 27, 2009).

The Mormon Church’s involvement in the California anti-gay marriage initiative gained the Church some unwanted attention, and entered into legal lore. Opponents of the measure interrupted church services in Michigan, and two Mormon temples and one Knights of Columbus headquarters received envelopes containing white powder. ProtectMarriage.com v. Bowen, 599 F.Supp.2d 1197, 2009 WL 440211 (E.D.Cal.  January 30, 2009). In a First Amendment case case, a court in New York wrote:

Like all Americans, clergy members have First Amendment rights. … Thus, the Rev. Martin Luther King could rally against segregation without rendering integration unconstitutional. Catholic Priests can endorse restrictions on abortion. Mormon-affiliated organizations can campaign against gay marriage. And Reform Judaism’s Religious Action Center can advocate for health care reform. Simply put: mere advocacy from a religious figure cannot transform an otherwise constitutionally acceptable government policy into a First Amendment violation.

Incantalupo v. Lawrence Union Free School Dist. No. 15, 2009 WL 2766705 (E.D.N.Y. August 24, 2009)(emphasis added). A Mormon judge in Hawaii was challenged for disqualification because of his vocal stand against gay marriage. Bayley v. Bayley, 121 Hawai’i 201, 216 P.3d 127, 2009 WL 2778315 (Hawai’i App. August 31, 2009).

Some additional interesting tidbits from the 2009 cases: the LDS Church is involved in litigation with the architects it hired to plan its center in Nauvoo (3 North, PLLC v. Corporation of the Presiding Bishops of the Church of Jesus Christ of Latter-Day Saints, 2009 WL 4884394 (E.D.Va. December 10, 2009)), and the Reorganized LDS Church is suing to protect its trademark. Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ’s Church, 613 F.Supp.2d 1140 (W.D.Mo., April 23, 2009).

Religions often act as “morality delivery systems.”  According to Jonathan Haidt in an NYT article titled “The Moral Instinct,” morality has 3 traits:

• Morality must invoke “universal” rules. Prohibitions of rape and murder, for example, are felt not to be matters of local custom but to be universally and objectively warranted. One can easily say, “I don’t like brussels sprouts, but I don’t care if you eat them,” but no one would say, “I don’t like killing, but I don’t care if you murder someone.”
• Immorality should be “punished.” Not only is it allowable to inflict pain on a person who has broken a moral rule; it is wrong not to, to “let them get away with it.” People are thus untroubled in inviting divine retribution or the power of the state to harm other people they deem immoral.
• Morality differs from other psychological mind-sets. This is the mind-set that makes us deem actions immoral (“killing is wrong”), rather than merely disagreeable (“I hate brussels sprouts”), unfashionable (“bell-bottoms are out”) or imprudent (“don’t scratch mosquito bites”).

We know from history that some behaviors that were once considered immoral (e.g. divorce) are now considered morally neutral and some behaviors that were considered morally neutral (e.g. smoking) are now considered immoral (due to harm caused to others). Additionally, people have different morality “thresholds” (e.g. the continuum between sport hunters and vegans). In short, some of what passes for morality is preference alignment (meaning people who make the same choices I do are “moral” while those who don’t are “immoral”). We have a gut reaction that something is wrong, but we don’t really know why, so we try to explain or rationalize our response. This would be fine if those gut reactions didn’t differ so much from culture to culture and from era to era, and even from person to person within culture and era.  Even things that are major morality taboos for us have been “norms” in some other societies:

• Sex with minors.  Older men initiating younger men into sexuality was a norm in ancient Greece.  Marriage in previous eras has been allowable pretty much as soon as the participants had reached puberty, much younger in the case of political alliances between dynastic families.  Large age discrepancies were far more acceptable in previous eras, especially to create financial security through the union.
• Incest.  In our society, we have a very strict prohibition on sex with someone too closely related, but in Hawaiian royalty, sibling marriage was considered an obligation to keep the royal blood pure.  Likewise, even in our own society, marriage to cousins was quite common as recently as the 1800s.
• Murder.  While we find intentional killing repugnant, it is often “allowed” or even encouraged when outside of one’s own ‘tribe.’  We currently call this war, but killing of outsiders has also been done throughout history as a method of purifying one’s race (killing neighboring infidels so that there will be no intermarriage) or appeasing deities (through human sacrifice of outsiders).
• Cannibalism.  Again, this is about the worst thing imaginable in our current society, but some cultures had cannibalistic rituals such as eating the dead to inherit their spiritual properties or eating their victims slain in battle to honor them.  Whatever floats yer boat, I guess.

According to Haidt, there are 5 morality “instincts” that are universal:

• Harm. The difference between sticking a pin in your own hand (ouch!) and sticking a pin in the hand of a child (!!). We might wince at the first, but we recoil in horror from the second.
• Fairness. Accepting something for free that was due to a random error (lucky me) vs. something for free that was stolen from someone else (!!).
• Community. Saying something bad about Mormonism to another active Mormon vs. saying something bad about Mormonism to an evangelical.
• Authority. Slapping a colleague as part of a comedy skit vs. slapping your bishop or your boss as part of a comedy skit.
• Purity. Actors in a play behaving in a silly manner on stage vs. actors in a play behaving like animals on stage (e.g. crawling around naked and urinating on stage).

So, while these might be the 5 morality “instincts,” they are still not truly universal for several reasons:

• Different thresholds for each.  Even within a community, there are often different thresholds for all of these five instincts.  One person may consider something as “harm” (or abuse) that another person thinks is “tough love.”  One person might consider something a purity issue (e.g. washing hands in the restroom) that another person considers a matter of preference (I hope I’m not shaking hands with this person).
• Different specifics for each.  While everyone may view someone as an authority, those authorities differ from person to person based on affiliation.  For example, depending on political affiliation, someone may deem Glenn Beck or Rush Limbaugh worthy of special respect as an authority, but may not afford the same respect to Nancy Pelosi or Barack Obama.  Likewise, I may view my parents as authority figures, but their parents didn’t necessarily view them the same way.
• Conflicting morals.  At times, these 5 instincts are in conflict with one another.  Is it immoral to harm another person if it helps the community (i.e. “the needs of the many outweigh the needs of the one”) or if an authority commands it (e.g. Nephi killing Laban)?  Is it immoral to harm another person as a means to achieve fairness (e.g. death penalty or even corporal punishment)?
• Morality vs. Preference.  Is it moral instinct or merely preference if the choice is inherently distasteful?  Once disgust enters, we cease to be rational.  What is the line between morality and squeamishness?  What makes one person feel squeamish doesn’t faze another.  For a person who is homophobic, their irrational fear of homosexuality may mean it is more of a question of (strong) preference than morality.
• Self-Serving Morality.  And aren’t “moral” choices that are based on “community” and “authority” mixed up with what is “imprudent”?  IOW, is it morality or fear of retaliation from authority or fear of being ostracized by the community?  And is purity always tied up in our fear of “impurity,” therefore, more a matter of preference than morality?

Some do not believe that morality is more than a social construct.  Do you agree or do you feel there is a universal form of morality that transcends time and culture?  How do you distinguish cultural norms and niceties from actual morality?  Can you readily identify a universal morality and cite examples?  If not, does this mean that there is no such thing as a universal morality or do differences in threshold and specifics mean that people have suppressed their understanding of the universal truth?  Discuss.

The claim, which was ultimately rejected by a court in Nevada, went like this.

During the last week in December of 1967, Dummar was driving in the late evening in rural Nevada. He pulled off of the main road for a short rest and found a man lying in the road. The man was clearly in distress. Dummar offered to help him, at the man’s request, and drove him to the Sands Hotel in Las Vegas, Nevada. During the ride to the Sands Hotel, the man identified himself as Howard Hughes, the industrialist. After Dummar left the Sands Hotel in December of 1967, he never again had contact with the man who had identified himself as Hughes.

Howard R. Hughes, Jr. died in 1976. Shortly after his death, a stranger allegedly delivered an envelope to Dummar at his place of employment in Willard, Utah. The envelope was addressed to David O. McKay, the late President of the LDS Church. Although the envelope was addressed to McKay, Dummar steamed open the envelope and found a handwritten document purporting to be Hughes’ last will and testament. Dummar delivered the envelope to the LDS Church’s headquarters in Salt Lake City, Utah and left it on a secretary’s desk, intending it to be delivered to the then-President of the LDS Church, Spencer W. Kimball.

On April 29, 1976, the LDS Church filed the handwritten document purporting to be Hughes’ holographic will for probate in the Clark County District Court in Las Vegas, Nevada. Among other bequests, the purported holographic will bequeathed one-sixteenth of Hughes’ estate to Dummar and another one-sixteenth of Hughes’ estate to the LDS Church. Dummar v. Lummis, 2007 WL 81808 (D.Utah 2007).

It was well-known that Hughes appreciated Mormons he employed, because they did not drink, smoke or gamble and they worked hard. Rosemont Enterprises, Inc. v. Random House, Inc., 256 F.Supp. 55 (S.D.N.Y. 1966).

The validity of the Mormon Will was litigated in an action brought by Hughes heirs, who but stood to inherit more if the will was found invalid and Hughes was ruled to have died intestate. William Lummis, the administrator of the estate, was not party to this litigation. The court in Nevada found the will to be a forgery. Rhoden v. First Nat. Bank of Nevada, 96 Nev. 654, 615 P.2d 244 (Nev. 1980).

Meanwhile, Hollywood got involved. The film “Melvin and Howard” was released in 1980 It depicted Dummar sympathetically. California and Texas fought each other in the U.S. Supreme Court to determine which state could claim Hughes lived their for purposes of estate taxes. California v. Texas, 457 U.S. 164, 102 S.Ct. 2335 (1982).

Dummar came back more recently, filing a lawsuit in Utah alleging that there was a conspiracy between the estate’s administrator and Hughes’ assistants to deprive him of what he was due. He alleged misconduct related to the trial. He learned from a pilot that on various occasions before December 1967, Hughes had flown to locations in southern Nevada to investigate sites for a terminal for supersonic jets and to visit brothels. The flights were arranged by Howard Eckersley, a close aide of Hughes. During late December 1967, Eckersley had the pilot take Hughes to visit a prostitute at the Cottontail Ranch at Lida Junction in rural Nevada. While waiting for Hughes at the brothel, the pilot fell asleep; when he awoke, he was told that Hughes had left alone. The pilot then returned to Las Vegas without Hughes. Some months after this incident, he accepted an executive position with a company owned by a friend of Hughes. Before the pilot left, Eckersley ordered him to turn over his flight logs and company records so that all references to Hughes as his passenger could be removed. The pilot then signed a nondisclosure agreement, which he honored.

Dummar also claimed to have learned that after the Mormon Will was delivered for probate, there was a meeting of aides close to Hughes in which it was decided that all would testify that Hughes never left the Desert Inn Hotel, where he lived, for years at a time; (2) the estate administrator and another Hughes aide bribed and threatened the aides to testify falsely; (3) top aides, including Eckersley, did testify falsely that Hughes never left his hotel during the period in question; (4) an aide himself testified that there was a “possibility” that Hughes left the Desert Inn, but he denied any actual knowledge of such a departure; (5) high doses of codeine contributed to Hughes’s death, and aides were “involved in” the destruction of boxes of empty codeine vials; (6) a member of the jury successfully campaigned to be elected foreperson by using typewritten notes that he claimed to have prepared at home from his handwritten trial notes, thus “irrevocably taint[ing]” the verdict, (7) after the trial a reporter was threatened and warned not to interview this juror or investigate the reasons for the probate verdict; (8) there was a pattern of threats, including of bodily harm, against witnesses who were to testify for Dummar; (9) the opponents of the Mormon Will paid more than $100,000 for expert testimony on handwriting; and (10) it was “understood” that the jury foreperson had his debts at Hughes’s casinos forgiven.

Judge Bruce Jenkins ended up throwing the Dummar challenge out, citing faith in the Nevada ruling, and he was affirmed on appeal. Dummar v. Lummis, 2007 WL 81808 (D.Utah 2007); Dummar v. Lummis, 543 F.3d 614 (10th Cir. 2008)

This interesting anecdote raises the question: Who are the LDS Church’s chosen litigators?

The Starr experience seems to be part of a larger reality The Church tends to rely on Kirton & McConkie to protect its commercial interests, though it is not averse to going national to get the best (or more local) representation in certain matters. We know this by surveying written judicial opinions, which give the name of lawyers of record in the litigation.

Kirton & McConkie, the law firm formerly known as Kirton, McConkie, Boyer & Boyle, apparently became the Church’s chosen litigators in the early 1970s, at least judging by when its attorneys started being mentioned in Church-related cases. Before then, the Church’s litigation was handled by the law firm of Ray, Quinney and Nebeker. The names Paul Ray, Albert Bowen, Paul H. Rudd, S.J. Quinney, A.H. Nebeker, Marvin Bertoch, John Snow, and Jay Jensen come up in older cases. Bowen seemed to mainly handle medical malpractice actions against LDS Hospital [2]. The Salt Lake City law firm of Irvine, Skeen, Thurman & Miner also handled some Church work in the 1940s [4]. Cases outside of Utah were handled by the Idaho law firm of Merrill & Merrill [5].

The old mainstays at K & M – Raymond Gee, Douglas Mitchell, Joseph Rust, Oscar McConkie, Richard Boyle, Wilford Kirton, Dan Bushnell, Richard R. Neslen, David Ericksen, B. Lloyd Poelman, Karlynn Himman, Allen Swan, David P. Farnsworth, and Norman Younker – mainly handled corporate litigation and real estate matters [6].
.
This group has given way in more recent years to a new group of younger litigators who have thrown themselves into social issues like discrimination and same-sex marriage as well has tort cases in which the LDS Church is increasingly sued.

The aforementioned Alexander Dushku shows up the most. In addition to the gay marriage controversy, Dushku has been involved in zoning, discrimination, property, First Amendment, water, intentional tort, sex abuse and clergy malpractice controversies.

After Dushku, the most active Church litigators are Von Keetch, Randy Austin, Matthew K. Richards, Eric Olson,Thomas Walk and Dan McConkie. Other modern K & M litigators who have made appearances on behalf of the LDS Church are Jason Beulter, R. Willis Orton, Merrill Nelson, David McConkie, Paul Matthews, David Walquist, Charles Dahlquist, Robert Wallace, and Christian Collins[7].

As noted, the Church often reaches out to local or national lawyers who are not employed by K & M, when it feels it is in its interest.

The late Rex Lee was a legendary advocate who was both President of BYU and U.S. Solicitor General, and he was never part of K & M He argued some of the most seminal matters involving the Mormon Church [8].

Rex Lee

When the Church needs litigators outside of Utah, they have some old stand-bys. Ralph Hunsaker of Phoenix is one [11]. Mark Costello, Mark Chopko and Jeffrey Hunter Moon of Washington D.C. have submitted amicus curae briefs on behalf of the LDS Church [12]. The big firms that have been associated with LDS Church legal affairs in, addition to or in lieu of K & M, are Gibson Dunn & Crutcher, Holland & Knight, Latham & Watkins, and Sidley Austin Brown & Wood [13].

For matters in Oregon, the Church has relied on Frankin Hunsaker, David Ernst and Steven English of Bullivant Houser Bailey and James Bean of Lindsay Hart Neil & Weigler LLP, Portland [14]. In Washington State, where the Church has been sued repeatedly for negligence in sexual abuse cases, it has relied on Thomas D. Frey and Marcus B. Nash (before he became a General Authority) of Seattle’s Stafford Frey Cooper [15]. Other Seattle lawyers who have gotten some LDS Church business (including sex abuse cases) are in the law firm of Gordon Thomas Honeywell Malanca Peterson & Daheim [16]. For Montana matters, the Church relies on Hash, O’Brien & Bartlett [17]. In Boise, it is Moffatt, Thomas, Barrett, Rock & Fields [18]. Personal injury lawsuits against the Church are generally defended by local counsel wherever the case is brought, rather than by Kirton & McConkie, and there are a number of local lawyers who have handled single pieces of Mormon litigation [19]. For these firms, the representation seems to be one-off arrangement.

The interesting thing about K & M involves the growing field of sexual abuse, which I have written about elsewhere, most of which are brought out of Utah. All but one of these cases are handled by someone other than K & M, though the Church’s Salt Lake City law firm is undoubtedly involved in key strategic decisions even if they are not on the pleadings.
________________

[1] In re Marriage Cases, 49 Cal.Rptr.3d 675 (Cal.App. 1 Dist. 2006); In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal. 2008).

[2] Brigham Young University v. Lillywhite, 118 F.2d 836 (10th Cir. 1941); Church of Jesus Christ of Latter Day Saints v. Scarborough, 189 F.2d 800 (10th Cir. 1951); Joseph v. W.H. Groves Latter Day Saints Hospital, 7 Utah 2d 39, 318 P.2d 330 (Utah 1957); Joseph v. W.H. Groves Latter-Day Saints Hospital, 10 Utah 2d 94, 348 P.2d 935 (Utah 1960); Dibblee v. Dr. W.H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P.2d 1085 (Utah 1961); Talbot v. Dr. W. H. Groves’ Latter-Day Saints Hospital, Inc., 21 Utah 2d 73, 440 P.2d 872 (Utah 1968); Weeks v. Latter-Day Saints Hospital, 418 F.2d 1035 (10th Cir. 1969).

[4] Potter v. Dr. W.H. Groves Latter-Day Saints Hospital, 99 Utah 71, 103 P.2d 280 (Utah 1940).

[5] Wheat v. Idaho Falls Latter Day Saints Hospital, 78 Idaho 60, 297 P.2d 1041 (Idaho 1956); Schofield v. Idaho Falls Latter Day Saints Hospital, 90 Idaho 186, 409 P.2d 107 (Idaho 1965).

[6] Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (Utah 1970); Manning v. Sevier County, 30 Utah 2d 305, 517 P.2d 549 (Utah 1973); McKinnon v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 529 P.2d 434 (Utah 1974); Bank of Salt Lake v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 534 P.2d 887 (Utah 1975); Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints, 565 P.2d 63 (Utah 1977); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830 F.2d 374 (D.C. Cir. 1987);Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Wallace, 590 P.2d 343 (Utah 1979); Church of Jesus Christ of Latter-Day Saints v. Industrial Commission, 590 P.2d 328 (Utah, 1979); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F.Supp. 1398 (D.D.C. 1986); Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987); Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862 (1987); Chapman By and Through Chapman v. Primary Children’s Hosp., 784 P.2d 1181 (Utah 1989); Hornsby v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 758 P.2d 929 (Utah App. 1988).

[6] Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198 (Utah 2001); Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 534 U.S. 1111, 122 S.Ct. 915 (2002); Davis v. Studdert, Slip Copy, 2003 WL 464067 (10th Cir. 2003); Washington County Water Conservancy Dist. v. Morgan,
82 P.3d 1125 (Utah 2003); Westchester Day School v. Village of Mamaroneck, 386 F.3d 183 (2nd Cir. 2004); Doe v. Corp. of President of Church of Jesus Christ of Latter-day Saints, 98 P.3d 429 (Utah App. 2004); Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005); Evans v. City of Berkeley, 38 Cal.4th 1, 129 P.3d 394 (Cal. 2006); 2151 Michelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2006 WL 1359664 (Cal.App. 4 Dist. 2006); 2151 Michelson, L.P. v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2008 WL 5196437 (Cal.App. 4 Dist. 2008).

[7] Hadnot v. Shaw, 826 P.2d 978 (Okl. 1992); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Ada County, 123 Idaho 410, 849 P.2d 83 (Idaho1993); Draper City v. Estate of Bernardo, 888 P.2d 1097 (Utah 1995);Safsten v. LDS Social Services, Inc., 942 P.2d 949 (Utah App. 1997); Nelson on Behalf of Hirschfeld v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 935 P.2d 512 (Utah 1997); Chittenden v. Waterbury Center Community Church, Inc.,168 Vt. 478, 726 A.2d 20 (Vt. 1998); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Queen Carpet, 5 F.Supp.2d 1246 (D. Utah 1998); Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Farm Bureau, 15 Fed.Appx. 544 (9th Cir. 2001); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 192 Or.App. 567, 86 P.3d 1140 (Or.App. 2004); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 338 Or. 453, 111 P.3d 1123 (Or.,2005; Riordan v. Corporation of Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 416 F.3d 825 (8th Cir. 2005); Smith v. Hales & Warner Const., Inc., 107 P.3d 701 (Utah App. 2005); Lowery v. Cook, 2007 WL 772782 (Utah App. 2007); Gulbraa v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 159 P.3d 392 (Utah App.,2007); MediaNews Group, Inc. v. McCarthey, 494 F.3d 1254 (10th Cir. 2007); Whited v. Corporatoin of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 2007 WL 1441203 (Utah App. 2007); Huyot-Renoir v. Corporation of President of Church of Jesus Christ of Latter-day Saints, 2007 WL 2058683 (Utah App. 2007); U.S. v. Great Salt Lake Council, Inc., 2007 WL 189470 ((D.Utah 2007); Buck v. Myers, 244 Fed.Appx. 193 (10th Cir. 2007).

[8] Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862 (1987); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830 F.2d 374 (D.C. Cir. 1987).

[9] Jane L. v. Bangerter, 794 F.Supp. 1537 (D.Utah 1992); Jane L. v. Bangerter, 828 F.Supp. 1544 (D.Utah,1993); Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995).

[10] Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002)

[11] In re General Adjudication of All Rights to Use Water in Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (Ariz. 2000); In re General Adjudication of All Rights to Use Water in Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (Ariz. 2000.)

[12] Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997); Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2nd Cir. 1999); Rweyemamu v. Cote, 520 F.3d 198 (2nd Cir 2008).

[13] People ex rel. Dept. Pub. Wks. v. Corporation etc. of Latter-Day Saints, 13 Cal.App.3d 371, 91 Cal.Rptr. 532 (Cal.App.2.Dist. 1970); Silo v. CHW Medical Foundation, 27 Cal.4th 1097, 45 P.3d 1162 (Cal. 2002); Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000); Martin v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 747 N.E.2d 131 (Mass. 2001); 2151 Michelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2006 WL 1359664 (Cal.App. 4 Dist. 2006); 2151 Michelson, L.P. v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints, 2008 WL 5196437(Cal.App. 4 Dist. 2008).

[14] Jack Doe 1 v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 2008 WL 4549075 (D.Or. 2008); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 192 Or.App. 567, 86 P.3d 1140
Or.App. 2004); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin , 338 Or. 453, 111 P.3d 1123 (Or. 2005); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Dept of Revenue, 1975 WL 1126 (Or.Tax. 1975); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Dept of Revenue, 276 Or. 775, 556 P.2d 685 (Or.Tax 1976)

[15] Neilson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 113 Wash.App. 1050, 2002 WL 31188444 (Wash.App. Div. 1 2002); Flanigan v. McCrea, 93 Wash.App. 1085, Not Reported in P.2d, 1999 WL 58767 (Wash.App. Div. 1,1999); “Jane Doe” v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 122 Wash.App. 556, 90 P.3d 1147 (Wash.App. Div. 1 2004).

[16] R.K. v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2006 WL 2506413 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 2661055 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 2661059 (W.D.Wash. 2006).

[17] Davis v. Church of Jesus Christ of Latter Day Saints, 244 Mont. 61, 796 P.2d 181 (Mont. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 258 Mont. 286, 852 P.2d 640 (Mont. 1993).

[18] Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Ada County, 123 Idaho 410, 849 P.2d 83
(Idaho 1993); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009).

[19] McKinney v. Public Service Co. of Indiana, Inc., 597 N.E.2d 1001 (Ind.App. 1 Dist.,1992); Stotts v. Church of Jesus Christ of Latter Day Saints, 882 P.2d 1106 (Okl.App. 1994); Essick v. Barksdale, 882 F.Supp. 365 (D.Del. 1995); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex.App.-Dallas,2000); Sy v. Board of Trustees of California State University, 2005 WL 950006 (Cal.App. 2 Dist. 2005); Waite v. Church of Jesus Christ, Latter-Day Saints,, 2007 WL 951710 (E.D.Wash. 2007).

The Muslims, we might understand. The Jehovah’s Witnesses? They don’t serve in the military, salute the flag, or vote, and there is a rumor they are not supposed to serve as jurors. But the Mormons? They pride themselves on being good American citizens. Why would they be excluded from civic functions like this?

Perhaps there is an impression that Mormons do not serve effectively in secular governmental functions. Is this reasonable? Can the LDS be trusted, for example, to be fair-minded judges and jurors in secular American legal disputes?

I believe this is a legitimate question, based on the proliferation of written opinions where concerns over Mormon religious bias are raised. There seem to be an unusually large number of cases – I counted 35 cases in which it was alleged that Mormon participants as neutral observers in the legal system could not be fair. This number consisted of 19 claims that Mormon judges should be disqualified and 16 cases involving LDS prospective jurors.

The judge cases go back over 50 years and involve allegations that LDS judges could not be fair in disputes involving Fundamentalist Mormons, the Howard Hughes will, the Equal Rights Amendment, corporate disputes involving the Mormon Church, cases involving Mormon victims, and criminal prosecutions involving black people, non-Mormons, drinking and rape [2]. Most of these cases were in Utah, Idaho and Nevada.

Mormon juror cases go back to 1970, and involve concerns that Mormons are more likely to apply the death penalty and that they would biased in sex, obscenity, and Mormon-victim cases and in matters with Mormon witnesses [3].

How about religions that are commonly confused with Mormons? I did not find a single case involving the Christian Scientists. I found one case involving a Seventh-Day Adventist prospective juror, going back over 50 years ago [4].

For the Jehovah’s Witnesses, I found 32 cases, all involving prospective jurors [5]. This could be expected because, as noted above, there are some who view Jehovah’s Witnesses as having a religious obligation not to serve as jurors [6]. Perhaps there are not enough Jehovah’s Witnesses who become judges for their disqualification to be sought.

Most Mormons would be chagrined at the accusation that they cannot effectively serve as judges or jurors, yet there are far more challenges to their fairness than with these other American minority religions, even the Jehovah’s Witnesses.

My strong sense is that parties seek to disqualify Mormon judges on religious grounds more than they do judges from other religions, even the big ones like the Catholics.

Why do I think this? It is because those few other cases I stumbled on – involving the attempted disqualification of Jewish, Catholic and Episcopalian judges – generally cite cases in which recusal is sought of Mormons [7]. If there were other cases involving the religion in question, they presumably would have found and cited them, since it would have been more persuasive authority. The paucity of these cases forced them instead to cite the Mormon cases.

I anticipated that this inferential reasoning would not be good enough for some people, so I set out to look for the actual number cases in which parties sought to remove Catholic judges. The Catholic Church is several times larger than the LDS Church. You would expect that they had far more attempted judge disqualifications.

Guess what? After searching high and low, I could only find 12 Catholic judge disqualification cases, with the first one coming in 1990 [8]. The Mormons, it seems, have even the Catholics beat on this score.
_______________

[1] Bats v. Cobb County, GA, 495 F.Supp.2d 1311 (N.D.Ga. 2007).

[2] Musser v. Third Judicial Dist. Court of Salt Lake County, 106 Utah 373, 148 P.2d 802 (Utah 1944); Hayes v. Forman, 93 Nev. 490, 568 P.2d 579 (Nev. 1977); State of Idaho v. Freeman, 478 F.Supp. 33 (D. Id. 1979); State of Idaho v. Freeman, 507 F.Supp. 706 (D. Id. 1981); Singer v. Wadman, 745 F.2d 606 (10th Cir. 1984); Orr v. Orr,108 Idaho 874, 702 P.2d 912 (Idaho App.,1985); Winslow v. Lehr, 641 F.Supp. 1237 (D.Colo. 1986); Fuller v. Harding, 699 F.Supp. 64 (E.D.Pa. 1988); Schmidt v. Medley,935 F.2d 278 (10th Cir. 1991); Snyder v. Viani,112 Nev. 568, 916 P.2d 170 (Nev.,1996); Bakalov v. State of Utah, 4 Fed.Appx. 654 (10th Cir. 2001); In re McCarthey, 368 F.3d 1266 (10th Cir. 2004); Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 353 F.Supp.2d 1160 (D.Utah,2005);. U.S. v. Maness, 2006 WL 1663843 (D.Alaska 2006); U.S. v. Kahre, , 2007 WL 2110500 (D.Nev. 2007); Sherratt v. Friel, 2007 WL 2815314 (D.Utah,2007); Ventress v. Japan Airlines, 2008 WL 763185 (D.Hawai‘I 2008); Sherratt v. Friel, 275 Fed.Appx. 763 (10th Cir. 2008); U.S. v. Kahre, 2008 WL 5246034 (D.Nev. 2008)

[3] State v. Kay, 25 Utah 2d 43, 475 P.2d 541 (Utah 1970); Robinson v. Wolff,349 F.Supp. 514 (D.Neb.) 1972; U. S. v. Credit, 2 M.J. 631 (AFCMR 1976); State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (Ariz. 1977); Piepenburg v. Cutler, 649 F.2d 783 (10th Cir. 1981); U.S. v. Wolters, 656 F.2d 523 (9th Cir. 1981); U.S. v. Affleck, 776 F.2d 1451 (10th Cir. 1985); Paradis v. Arave, 667 F.Supp. 1361 (D.Id. 1987); Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 758 P.2d 929 (Utah Ct.App.1988), Seagrave v. Gomez, 974 F.2d 1343 (9th Cir. 1992); State v. Wood, 868 P.2d 70 (Utah 1993); State v. Bowman, 124 Idaho 936, 866 P.2d 193 (Idaho App. 1993); State v. Fuller, 182 N.J. 174, 862 A.2d 1130 (N.J. 2004); People v. Proffitt, 2003 WL 21711374 (Cal.App. 4 Dist. 2003); State v. Wood, 868 P.2d 70 (Utah 1993); People v. Mays, 2007 WL 2774702 (Cal.App. 6 Dist. 2007).

[4] People v. Weitz, 255 P.2d 40 (Cal.App. 3 Dist. 1953)

[5] Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629 (Tex.Cr.App. 1959); U.S. v. Dangler, 422 F.2d 344 (5th Cir. 1970); State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (N.C. 1986); Chambers v. State, 724 S.W.2d 440 (Tex.App.-Hous. [14 Dist.] 1987); Powell v. Bowersox, 895 F.Supp. 1298 (E.D.Mo. 1995); State v. Watkins, 114 N.J. 259, 553 A.2d 1344 (N.J. 1989); People v. Sanchez, 208 Cal.App.3d 721, 256 Cal.Rptr. 446 (Cal.App.4.Dist. 1989); People v. Tyburski, 196 Mich.App. 576, 494 N.W.2d 20 (Mich.App. 1992); People v. Hill, 3 Cal.4th 959, 13 Cal.Rptr.2d 475 (Cal. 1992); State v. Davis, 1993 WL 593 (Minn.App. 1993); State v. Davis, 504 N.W.2d 767 (Minn. 1993); Davis v. Minnesota, 511 U.S. 1115, 114 S.Ct. 2120 (1994); State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (N.C. 1994); People v. Woods, 643 N.E.2d 1331 (Ill.App. 1 Dist. 1994); People v. Brown, 1996 WL 33357148 (Mich.App. 1996); Sudul v. City of Hamtramck, 221 Mich.App. 455, 562 N.W.2d 478 (Mich.App.,1997); People v. Martin, 64 Cal.App.4th 378, 75 Cal.Rptr.2d 147 (Cal.App.1.Dist.1998); State v. Tucker, 334 S.C. 1, 512 S.E.2d 99 (S.C. 1999); Hodges v. State, 856 So.2d 875 (Ala.Crim.App.,2001); People v. Cash, 28 Cal.4th 703, 122 Cal.Rptr.2d 545 (Cal. 2002); State v. Dehaney, 261 Conn. 336, 803 A.2d 267 (Conn. 2002); U.S. v. Kincade, 345 F.3d 1095 (9th Cir. 2003); State v. Wise, 359 S.C. 14, 596 S.E.2d 475 (S.C.,2004); Hodges v. State, — So.2d —-, 2007 WL 866658 (Ala.Crim.App. 2007); People v. Juarez, 2007 WL 1140468 (Cal.App. 4 Dist. 2007); Castro v. State, 233 S.W.3d 46 (Tex.App.-Houston [1 Dist.] 2007); Hyde v. Branker, 2007 WL 2827411 (E.D.N.C. 2007); Persad v. Conway, 2008 WL 268812 (E.D.N.Y. 2008); People v. Schreiber, 2008 WL 1810305 (Cal.App. 3 Dist. 2008); Com. v. Dennis, 597 Pa. 159, 950 A.2d 945 (Pa. 2008); In re Pilshaw, 286 Kan. 574, 186 P.3d 708 (Kan 2008); People v. Avila, 46 Cal.4th 680, 208 P.3d 634 (Cal. 2009); Ali v. Hickman, 571 F.3d 902 (9th Cir. 2009).

[6] In re Jenison, 265 Minn. 96, 120 N.W.2d 515 (Minn.1963); State v. Everly, 150 W.Va. 423, 146 S.E.2d 705 (W.Va. 1966); Petition of Williams, 474 F.Supp. 384 (D.Ariz. 1979); U.S. v. Maskeny, 609 F.2d 183 (5th Cir. 1980); Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (S.C. 1994)

[7] U.S. v. Fiat Motors of North America, Inc., 512 F.Supp. 247 (D.D.C. 1981); Menora v. Illinois High School Ass’n, 527 F.Supp. 632 (N.D. Ill. 1981); U.S. v. El-Gabrowny, 844 F.Supp. 955 (S.D.N.Y. 1994); Petruska v. Gannon University, 2007 WL 3072237 (W.D.Pa. 2007).

[8] Sabatier v. Suntrust Bank, Slip Copy, 2009 WL 2430892 (S.D.Fla. 2009); Paul v. D & B Tile of Hialeah, Inc., Slip Copy, 2009 WL 2430901 (S.D.Fla. 2009); Bettis v. Toys R Us, — F.Supp.2d —-, 2009 WL 2423752 (S.D.Fla. 2009); Hoatson v. New York Archdiocese, 280 Fed.Appx. 88, 2008 WL 2235607 (2nd Cir. 2008); Petruska v. Gannon University, 2007 WL 3072237 (W.D.Pa 2007); Hoatson v. New York Archdiocese, 2006 WL 3500633 (S.D.N.Y. 2006); In re Disqualification of McDonnell, 101 Ohio St.3d 1223, 803 N.E.2d 822, 2003 WL 23209396, 2003 -Ohio- 7357 (Ohio 2003); U.S. v. Arena, 180 F.3d 380, 1999 WL 365271, 52 Fed. R. Evid. Serv. 908 (2nd Cir. 1999); In re Disqualification of Fuerst, 77 Ohio St.3d 1253, 674 N.E.2d 361, 1996 WL 734380 (Ohio 1996); Rizzuto v. Rematt, 273 Ill.App.3d 447, 653 N.E.2d 34, 210 Ill.Dec. 447, 1995 WL 383314 (Ill.App. 1 Dist. 1995); Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 1995 WL 649927, 95 Cal. Daily Op. Serv. 8594, 95 Daily Journal D.A.R. 14,830 (9th Cir. 1995); Savage v. Trammell Crow Co., 223 Cal.App.3d 1562, 273 Cal.Rptr. 302, 1990 WL 137572 (Cal.App. 4 Dist. 1990).

Christina Axson-Flynn was studying acting at the University of Utah. A Mormon, she was uncomfortable that the school’s acting exercises required her characters to utter some dirty words. So she sued. Axson-Flynn v. Johnson, 151 F Supp 2d 1326 (D. Utah 2001).

Boyle and Axson-Flynn both claimed that their First Amendment rights were violated. That part of the Constitution, in addition to forbidding the government from establishing religions, prohibits it from interfering with the free exercise thereof.

Mormons are taught to be in the world but not of the world. Sometimes, this requires them to take stands. Were these two free exercise lawsuits part of that proud tradition?

I have my doubts. I am generally uncomfortable when taking stands means hiring plaintiff’s lawyers to stop people from doing what they want to do, rather than just walking away, especially when there is no harm beyond elective activities. Why? In addition to clogging up the legal system, lawsuits like this create “externalities.” That’s a fancy economic term for “unintended consequences.”

Want more facts?

Boyle was a golf professional for five years starting in 1969. He played golf on Sundays about four times but his religious beliefs became stronger over the years and he began to feel that it is not appropriate for him to golf on Sunday. Boyle was a member of the Jerome Country Club and belonged to the Men’s Association where his dues contribute to the prize money awarded at the club’s tournaments. A tournament round of golf consisted of playing 18 holes, and typically has an opening round on Saturday and a closing round on Sunday. In 1993, the Jerome Country Club professional, John Peterson, allowed Boyle to play 36 holes on Saturday during a club tournament after Boyle complained that he could not play the final Sunday round. But in 1994, Peterson refused a similar request by Boyle to play 36 holes on Saturday, and Boyle did not play in that tournament. It was undisputed that the club never refused to permit Boyle to enter a tournament or to play a round of golf.

In 1998, Christina Axson-Flynn entered the University of Utah’s Actor Training Program (ATP). Axson-Flynn, who is Mormon, refused to say the word “f___” or take God’s name in vain during classroom acting exercises. During Axson-Flynn’s first semester in the program, ATP faculty members-told Axson-Flynn to “get over” her refusal to use those words, saying that not using the words would stunt her growth as an actor. Axson-Flynn did not “get over” her refusal to say the words and eventually left the ATP (and the University of Utah) before the end of her second semester; although never ordered to leave, she assumed that she would eventually be forced out.

The absurd extension of the Boyle lawsuit – what might illustrate the externalities to Mormons – involved some Seventh-Day Adventists who sued because the basketball tournament in which they wanted to compete took place on Saturday, which is their Sabbath. Nakashima v. Board of Education, 204 Or.App 535 (Ore. 2006).

Now, what would happen if sports organizers were forbidden from holding events on both Saturday (as demanded by the Adventists) or Sunday (as demanded by the Mormons)? There would be no weekend sports competitions.

The extension to the Axson-Flynn lawsuit? This was a tougher one for me to find and posit. I settled on litigation over Salt Lake City’s West High’s choice of songs for the Holiday season. Rachel Bauchman was Jewish, and did not want Christmas foisted upon her. To her, the Christian songs were as offensive as baudy lines were to Christina Axson-Flynn. So she sued. Bauchman v. West High School, 900 F Supp 254 (D. Utah 1995).

What would happen if students could sue over being forced to do anything their conscience decided was objectionable, like Axson-Flynn and Rachel Bauchman? Standard curricula would become extinct. Copyrighted property like songs and plays would be subject to alterations.

Maybe it’s just me, because I am a lawyer who finds himself largely agreeing with much of the anti-attorney sentiment. My profession has become rotten through unscrupulous plaintiff’s lawyers. I think sometimes righteous causes in defense become offensive when they are ….. offensive, as in affirmative.

I do recognize that some of the greatest advances in civil rights occurred because of affirmative litigation. This does not make me cheer for the likes of John Boyle and Christina Axson-Flynn.

Part of it has to do with their claimed injury. For example, I would be among the first to come to Boyle’s defense if he were not admitted to (or kicked out of) the Jerome Country Club for refusing to play on Sunday, and Christina Axson Flynn if she were booted out of college entirely for refusing to utter saucy script lines. Wrongful reprisal surely requires affirmative litigation. However, these were not the facts of these cases. When people who are merely annoyed – who have their feelings hurt – hire lawyers to bring affirmative cases when they do not get their way, they lose their moral authority, at least with me. These are not really civil rights cases.

In case you were wondering, both the Boyle, Axson-Flynn and Bauchman cases were dismissed, though Axson-Flynn won a partial reversal from the 10th Circuit Court of Appeals. Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).

Well which church? There seems to be a lock on the Mormon Church in this case … which we all know has a lock on family values in the entire world.

Bias was a false charge, according to the court that later reviewed the transcript. What Judge Clapp was reacting to were parents who were attempting to deceive him by pretending to be devout Mormons, and attributing the abuse they inflicted on their children as mandated by their religion. The father had pulled his stepson’s hair out in anger; withheld food; forced fed him; dumped snow on the naked child; regularly kicked the child’s legs out from under him; rubbed a mixture of adult shampoo and salt into his eyes; and intentionally dropped the child on his head. One child had already been taken out of the family home. Judge Clapp was trying to decide whether the state should be permitted to step in and take custody of the second one.

What helped explain Judge Clapp’s frustration was a statement he made at another hearing a week later:

The assertion has been made by the [parents] throughout these cases that they are devout Mormons and follow the dictates of the church regarding family values. The court’s orders after C-1 hearings and psychological evaluations even recognize this factor. This has been and is a sham and was part of the entire “fake-good” cover-up of the abuse in the home. That religion neither teaches nor condones their behavior. No civilized religion would, and the [parents] know that.

Judge Clapp was merely stating a truism. Of course, Mormonism does not condone such treatment. In the end, the parents’ efforts to disqualify the judge failed [1].

Was this case an aberration? How have Mormons been treated in the various family courts around the country? How have they behaved to get there?

If you look at all instances in which the LDS Church has been mentioned in family court opinions, you see cases spanning across the spectrum.

On the one hand, even beyond traditional LDS enclaves, the Mormon Church is characterized in family court opinions as a stabilizing force in broken families [2]. This is a narrative that conforms with the beliefs of most active Mormons, which is to say it is not much of a story.

On the other hand, there are some cases where the LDS Church – which purports to disapprove of divorce – has seemed to drive a wedge in a marriage.

An extreme case might have been that of New Yorker David Edward Hughes. He married his wife over the objections of the Mormon family with whom she lived, and they had two children. After the marriage, Mormon church officials constantly pressed their influence on the couple and in various ways attempted to induce Hughes and his wife to follow LDS ways and to become members of the Church. In spite of the Hughes’ disinterest in Mormonism, which he made plain to Church leaders, they would frequently visit at the Hughes home where they would show movies and slides on Mormonism for the purpose of proselytizing Hughes and his family. Finally, the persistent efforts became so offensive that Hughes he forbade the Mormons from visiting his home.

Shortly afterward, on May 7, 1960, Hughes went to work as usual, but when he returned home that evening, he found that his home had been emptied of all its furniture and furnishings, and his wife and children were gone. He made diligent efforts to locate his wife and children through the police, various state and local officials and his own attorneys, to no avail. Only after many months of diligent inquiry and investigation did Hughes learn that his wife and children, in company with several Mormons, had moved to San Jose, California [3].

Another examples involved the Oliphants of the Pacific Northwest. Helen and Edwin Oliphant were married in 1949, and they had three children. Helen sued for divorce in 1960, though she did not follow through. Instead, they were sealed in the Temple in 1963, in hopes of saving their marriage. Two years later, Edwin was committed to a State Hospital, and Helen re-filed for divorce. She claimed that Edwin’s attachment to the Mormon Church became that of a religious zealot, that he frequently accused her of lying and being deceitful, that he physically abused her while enraged, that on one occasion he made her sit on a stool all night so that she would learn to understand him. He also had sex with his oldest daughter to teach her a lesson [4].

There seems to have been a number of Catholic-Mormon marriages that failed, and how to then raise the kids becomes the subject of litigation. In New York, Eleanor and Clifford Morris were married in 1942. Cliff, a Mormon. promised her that if they got married in a non-Catholic wedding, they would eventually have a Catholic ceremony, and raise their kids Catholic. When he reneged, she sued for an annulment based on fraud [5]. More recently, Catholic and Mormon ex-spouses have objected to custody arrangements in which their kids would be involved in the other religion. In a Ohio case, Catherine Stafford was Catholic and her ex-husband, John Stafford, was Mormon. She complained that he was frightening the children with stories of the apocalypse and neglecting the children’s education by forsaking remedial reading workbooks in favor of bible stories and comic books [6]. In Wisconsin, Philip DeHahn, a Mormon, unsuccessfully objected to his ex-wife’s taking their children to Catholic service on holidays three times a year [7]. A similar dispute involved a divorced couple in Minnesota who argued over whether their children should be raised Mormon or Catholic [8]. Other courts have had less trouble finding an appropriate solution to this situation, splitting the baby as it were [9]. So committed are Mormon parents to raising their kids LDS that some have sued when kids they gave up for adoption were not placed with Mormon families [10].

Is there any residual anti-Mormon animus in family courts? Very little. I found two cases where this seemed to be present, but these were back in the 1960s. A California court denied a deaf mute Mormon couple the right to adopt a baby, but this was quickly reversed [11]. A Utah court considered whether a Mormon couple was fit to adopt a baby, ultimately deciding that they were. The objections?

[T]hat they are so old (in their early 40′s) that according to the social agencies they are marginal as to age for adoptive parents; that they may have had some health problems; that they are “Mormons” and therefore objector alleges have some ‘odd beliefs’; that Mr. Wilson seems to be on the roughhewn side and at times embellishes his language with some colorful, if not socially delicate, adjectives known as ‘swear words’; and has been known to tell ribald stories [12].

Any anti-Mormon feelings by family courts seemed to be reserved for polygamists and Fundamentalists, who still do not fare well in that setting [13].

Of course, if we are talking about adoption, there will be cases involving LDS Social Services. There were several cases in which the Church objected to the return of children given up for adoption to their family members, which might seem a little heavy-handed to some [14].

How do the Mormon family court cases compare to those of similar religions?

Like the Mormons, the Adventists have tangled with Catholics in custody matters [15]. There were a couple of cases in which Adventism is depicted in a positive light [16], and a couple in the negative light [17]. All in all, there is not much there.

We know that Christian Scientists do not believe in traditional medical care, so custody and adoption disputes involving Christian Scientist parents are bound to get thornier for courts than, say, Mormon vs. non-Mormon disputes. There are plenty of cases in which the Christian Science faith is depicted negatively, and was a major source of marital discord [18]. When it comes to adoption, Christian Scientists have come under some lingering suspicion, and courts have scrubbed hard of what was best for the children [19]. There are some family disputes in which the Christian Science faith is depicted as a stabilizing force, but far fewer than Mormonism [20]. The Scientists and their advocates have pushed back in recent decade, engaging in affirmative litigation to protect their family rights [21].

The Jehovah’s Witnesses are another story altogether. Like the Christian Scientists, they do not believe in blood transfusion, which makes custody and adoption matters very difficult for them. I counted more family law matters in which the Jehovah’s Witnesses were portrayed in a negative light than I could quantify for this article. This is a rather sad state of affairs. As one particularly thoughtful court, ruling on a custody issue, put it:

I can think of nothing more unmanageable than an inquiry into a man’s religious, spiritual and ethical creed. There is no catalogue of tolerable beliefs. Nor would the nature of man permit one, for man is inherently intolerant as to matters unknowable, and the intensity of his intolerance is twin with the intensity of his views. I assume the majority would never deny adoption ‘solely’ because of a belief in that area, but if the belief may be considered as the majority say it may, then how much may be charged against an applicant who is a Jehovah’s Witness and therefore opposed to blood transfusions, or a Christian Scientist, who, as I understand his faith, would turn to medical aid only as a last resort? And since a man’s religious, spiritual and ethical views may be more evident in his position on specific subjects than in his abstract statement of his faith, will it be all right to inquire of his attitude toward the war in Vietnam, or capital punishment, or divorce, or abortion, or perhaps even public welfare, or income taxation, or caveat emptor, in all of which some people find evidence of moral fiber or lack of it? [22]

________________

[1] In re William S., 745 A.2d 991 (Me. 2000).

[2] Ashwell v. Ashwell, 135 Cal.App.2d 211, 286 P.2d 983 (Cal.App. 1955); O’Brien v. O’Brien, 259 Cal.App.2d 418, 66 Cal.Rptr. 424(Cal.App. 1968); State ex rel. Firecrow’s Adoption v. District Court of Sixteenth Judicial Dist., 167 Mont. 139, 536 P.2d 190 (Mont. 1975); Groves v. Groves, 173 Mont. 291, 567 P.2d 459 (Mont. 1977); Nielsen v. Nielsen, 620 P.2d 511 (Utah 1980); Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App. 1982); Ferry v. Powers, 13 Mass.App.Ct. 1039, 433 N.E.2d 1250 (Mass.App. 1982); In re Glass Applying for Adoption, 424 So.2d 383 (La.App. 2 Cir.,1982); In Interest of J.S., 351 N.W.2d 440 (N.D. 1984); State in Interest of C.G., 609 So.2d 1049 (La.App. 2 Cir. 1992); Hudema v. Carpenter, 989 P.2d 491 (Utah App. 1999); In re Marriage of Ludwinski, 312 Ill.App.3d 495, 727 N.E.2d 419 (Ill.App. 4 Dist. 2000); Brisbois v. Brisbois, 767 So.2d 887 (La.App. 5 Cir. 2000); In re Marriage of Cerven, 317 Ill.App.3d 895, 742 N.E.2d 343 (Ill.App. 2 Dist. 2000); In re Marriage of Letey,2005 WL 3445997 (Cal.App. 4 Dist. 2005); In re Darci B., 2006 WL 1075005
(Cal.App. 2 Dist. 2006); In re Kara C., 2006 WL 1229748 (Cal.App. 2 Dist. 2006); Danielle A. v. Superior Court, 2007 WL 264024 (Cal.App. 4 Dist.,2007); A.C. v. B.C.
2008 WL 6085678 (Del.Fam.Ct. 2008).

[3] Santa Clara County, Cal. v. Hughes, 43 Misc.2d 559, 251 N.Y.S.2d 579 (N.Y.Fam.Ct. 1964)

[4] Oliphant v. Oliphant, 72 Wash.2d 666, 435 P.2d 29 (Wash. 1968).

[5] Morris v. Morris, 67 N.Y.S.2d 760 (N.Y. Sup. 1947).

[6] Stafford v. Stafford, 1994 WL 30515 (Ohio App. 6 Dist. 1994).

[7] Wood v. DeHahn, 214 Wis.2d 221, 571 N.W.2d 186 (Wis.App. 1997).

[8] Johnson-Smolak v. Fink, 703 N.W.2d 588 (Minn.App. 2005).

[9] In re Adoption of Child, 37 A.D.2d 78, 322 N.Y.S.2d 532 (N.Y.A.D. 1971); Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (Wash. 1971); Hein v. Hein, 1999 WL 33548932 (Neb.Dist.Ct. 1999); Spilski v. Novak, 2003 WL 1439819 (Mich.App. 2003).

[10] In Interest of C.B., 221 Ill.App.3d 686, 583 N.E.2d 107 (Ill.App. 4 Dist. 1991); Hutchinson on Behalf of Baker v. Spink, 126 F.3d 895 97th Cir. 1997); Olison v. Governor Ryan, 2000 WL 1263597 (N.D.Ill. 2000).

[11] In re Adoption of Richardson, 251 Cal.App.2d 222, 59 Cal.Rptr. 323 (Cal.App. 1967).

[12] Wilson v. Pierce, 14 Utah 2d 317, 383 P.2d 925(Utah 1963).

[13] Matter of Adoption of W.A.T., 808 P.2d 1083 (Utah 1991); Department of Children and Families v. B.B., 824 So.2d 1000 (Fla.App. 5 Dist. 2002); Shepp v. Shepp, 821 A.2d 635 (Pa.Super.,2003); Shepp v. Shepp, 588 Pa. 691, 906 A.2d 1165 (Pa. 2006).

[14] D– P– v. Social Service and Child Welfare Dept. of Relief Soc. General Bd. , 19 Utah 2d 311, 431 P.2d 547 (Utah 1967); Ellis v. Social Services Dept. of Church of Jesus Christ of Latter-Day Saints, 615 P.2d 1250 (Utah 1980); Swayne v. L.D.S. Social Services, 670 F.Supp. 1537 (D.Utah 1987); Swayne v. L.D.S. Social Services, 761 P.2d 932 (Utah App. 1988); Swayne v. L.D.S. Social Services, 761 P.2d 932 (Utah App. 1988); Beltran v. Allan, 926 P.2d 892 (Utah App. 1996); In Interest of J.B., 1998 WL 178648 (Tex.App.-Dallas 1998); Interest of D.B., 1998 WL 297360 (Tex.App.-Dallas 1998); In re Jordan N., 2007 WL 708581 (Cal.App. 4 Dist. 2007).

[15] Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949 (Mo.App. 1945); Petition of Duarte, 331 Mass. 747, 122 N.E.2d 890 (Mass. 1954).

[16] H.S.C. v. C.E.C., 944 So.2d 738 (La.App. 4 Cir. 2006); In re K.B., 20 Misc.3d 1130(A), 872 N.Y.S.2d 691 (N.Y.Sur. 2008); V.O. v. B.R., 2009 WL 2424639 (Del.Fam.Ct. 2009).

[17] Spradling v. Harris, 13 Kan.App.2d 595, 778 P.2d 365 (Kan.App. 1989); Adams v. Oregon State Children’s Services Div., 131 Or.App. 396, 886 P.2d 19 (Or.App. 1994); In re Marriage of Kavanaugh, 2000 WL 378270 (Iowa App. 2000); Roberts v. Roberts,2000 WL 1473869 (Tenn.Ct.App.,2000).

[18] Gugle v. Gugle, 57 N.E.2d 156 (Ohio App. 1943); Curtis v. Curtis, 82 Cal.App.2d 965, 187 P.2d 921 (Cal.App.1. Dist. 1947); Martin v. Martin, 283 A.D. 721, 127 N.Y.S.2d 851 (N.Y.A.D. 2 Dept. 1954); Gluckstern v. Gluckstern, 148 N.Y.S.2d 391 (N.Y. Sup. 1955); Boyer v. Boyer, 183 Pa.Super. 260, 130 A.2d 265 (Pa.Super 1957); Wisely v. Wisely,178 Cal.App.2d 181, 2 Cal.Rptr. 886 (Cal.App.1.Dist. 1960); Gluckstern v. Gluckstern, 31 Misc.2d 58, 220 N.Y.S.2d 623 (N.Y.Sup. 1961); Carneal v. Carneal,211 Va. 162, 176 S.E.2d 305 (Va. 1970).

[19] Donahue v. Donahue,41 Backes 701, 61 A.2d 243 (N.J.Err. & App. 1948); Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (Miss. 1951); Gluckstern v. Gluckstern, 17 Misc.2d 83, 158 N.Y.S.2d 504 (N.Y.Sup. 1956); Wheeler v. Wheeler, 147 A.D.2d 939, 537 N.Y.S.2d 387 (N.Y.A.D. 4 Dept. 1989); In re Marriage of Jaeger, 883 P.2d 577 (Colo.App. 1994).

[20] In re Cole, 274 S.W.2d 601 (Mo.App. 1955); Lake v. Lake, 756 A.2d 917 (D.C. 2000); Anonymous v. Anonymous, 123 N.Y.S.2d 286 (N.Y. Sup. 1953); In re Marriage of Ruble, 2004 WL 736924 (Cal.App. 4 Dist. 2004).

[21] Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996); Nolan v. State of Hawaii, 841 F.2d 1129 (9th Cir. 1988).

[22] In re Adoption of E, 59 N.J. 36, 279 A.2d 785 (N.J. 1971).

This means that if you do not answer me lawfully and take my money or property or in any way continue to harass me or fail to assure me of my being secure in my persons, houses, papers and effects, that I’m justified in acts of war to balance your terrorism. Do you get it? I will kill any of your agents I can find. I will blow up your buildings. This is war.

Barlow is a Mormon. Well, sort of. He was part of the Fundamentalist LDS Church, at least before he got kicked out. Was his letter not a little over the top? The jury thought so. He received a 21-month prison sentence [1].

Was this type of conduct typical of Mormons? Sure, the LDS agree to be subject to kings, presidents, rulers, and magistrates, and to obey, honor, and sustain the law. It is taught in Primary, and part of what it means to be a good Mormon and American. The trouble comes when we get into the details. Yes, the Tax Code – Title 26 of the U.S. Code – is very detailed. Does the 12th Article of Faith include the agreement not to tangle with the Executive Branch tax collectors?

Fighting the IRS is, in some ways, part of Mormon lore. Individual Mormons (typically the well-heeled) have taken some very aggressive tax positions and have gone to court to defend them.

Consider the first Mormon-related tax case in modern times. Ernest Wilkinson – yes, the Ernest Wilkinson, successful lawyer and BYU President – engaged in some creative accounting to minimize his tax exposure for a whopping (by 1960s standards) $ 1.4 million in legal fees he had received from the Ute Indian tribe. President Wilkinson took the IRS to court, and he won [2]. Over the next 50 years, other Mormons have taken some fairly aggressive tax positions which led them to Tax Court [3].

What is not particularly aggressive to go to court to challenge tithing deductions that were disallowed because of inadequate documentation [4]. By the same token, it was only mildly aggressive to defend the deductibility of payments made to sons while on their LDS missions, at least before the U.S. Supreme Court ruled those deductions improper [5].

Where the Church itself is a party in litigation with the tax authorities, the subject seems to be its seemingly-never ending quest to be exempt from property taxes [6]. The Church has also litigated whether it is tax-exempt in all of its far-flung economic activities [7].

These cases, mainly good faith disputes, do not say much about whether Mormons are prone to be tax scofflaws. More probative on this question are the many Mormons who have engaged in tax rebellion.

The first published opinion in this category involved James and Jean Smith, who argued that had been singled out and selectively prosecuted by the IRS because they were Mormons, based on the false belief that members of the Church constitute what Federal officials call the “Tax Rebellion Movement.” The Smiths left no doubt about what they were. They claimed that the 16th Amendment was never properly ratified, and they attacked the legality of the United States’ monetary system, arguing that they never received any “constitutional dollars” which would be subject to Federal income taxation [8].

The notion that the IRS was picking on Mormons during this era was apparently getting some circulation among tax protestors. A few years earlier, George Markovsky felt compelled to write a letter to the IRS, which stated:

[The revenue agent’s] pocket ‘Summons‘ specifically requests above-named Associates (i.e., petitioner and his wife) to abjure their First and Fifth Amendment Immunities by meeting with her on September 9, 1976 for the purpose of answering questions and providing information and documentary evidence for Holy Office types to use against them.

Mr. and Mrs. Markovsky are NOT members of the Mormon Church. Hence they are under no threat of being excommunicated from the Celestial jurisdiction by the Hierarchy of that or any other church for exercising their First Amendment Religio/Political Freedoms to be (Tax) Protesters (or ‘Protestants‘ if you will, the terms are interchangeable because they mean the same things).

And, of course, the statute of limitations expired 200 years ago on the sorry idea that secular servants had “authority” to undress (excommunicate) individuals of their Civil Rights and Liberties and thereafter imprison them for the Heresy of being protesters or dissenters to the status quo. First Amendment Injunction took care of such arrogances.

The Markovsky’s take the position that because 1040′s, W-4E’s, W-4′s, and other Income Tax forms are Confessions, which are enforced by Inquisitorial procedures that you and yours are engaged in the UNAUTHORIZED PRACTICE OF (Catholic) CHURCH LAW. You and yours seem to have forgotten – or never knew – that formal Confession to an entrenched priestly class has, from time immemorial, been the controlling Sacrament of Catholic Religions; that it was the compulsions surrounding the Liturgy of Confession which Martin Luther rejected, ab initio, over 400 years ago by his Priesthood of all Believers principle, thereby precipitating the PROTESTANT (Protester) Reformation; and that this same Self-Priesthood principle is the precedent underlying Separation of Church and State and other First Amendment Injunctions.

The Markovsky’s have no objection to Priests and other Clergymen practicing the liturgy of Confession within the privacy of their religious associations. That’s known as Freedom of Religion!

But they REFUSE to permit persons living off public payrolls TO PRACTICE THEIR IGNORANCE OF FIRST AMENDMENT INJUNCTIONS ON THEM, as if they were subjects of a Church/State Theocracy, instead of Sovereign citizens of a Republic founded on the individual’s Self-Priesthood. Moreover they reject the pretension that when the First Amendment demoted Priests and other Clergymen to private citizens thereby enjoining Official use of the implements of religious psychology to promote Political Orthodoxy on this side of the Atlantic – that it somehow transferred their erstwhile sacerdotal License, intact, to Secular Servants of these United States [9].

Around this time, the conviction of Sheryl Brown for willful failure to file an income tax return was affirmed, over his objection that the prosecution violated the Free Exercise Clause of the First Amendment by obtaining records from the Mormon Church [10].

Over the next two decades, Mormons have tried to conceal their income by starting their own church and claiming to be tax-exempt [11] and by arguing, like Sheryl Brown, that the IRS had no power to compel records from the LDS Church [12]. Perhaps the granddaddy of all Mormon tax protestors is Philip Marsh, who was successfully prosecuted for marketing un-taxing kits to help people drop off the IRS’ radar screen [13].

In the last ten years, Mormons have argued that they are discriminated against in the Tax Court [14]. They have also repeated claim that the LDS Church is immune for IRS summons process [15]. One can see why Mormon tax evaders would find the Church cooperation harrowing. After all, if the IRS wanted to know how much gross income someone earned during a year, they merely need to access the person’s tithing records and multiply by ten.

While these cases were going on, there can be no question what the official LDS position is on income taxes: it encourages people to come clean with the IRS. For example, a Mormon bishop recommended that a congregant write a letter to the IRS confessing that he filed a tax return, in order to relieve his ex-wife of joint and several liability she might otherwise suffer [16].

This ethos – respecting the IRS and its authority – sometimes makes the Church conform when it would not otherwise want to. For example, I am one of those cynical people who think that Spencer W. Kimball’s “revelation” about blacks and the priesthood was not a message from God. Instead, it was an example of political expediency and tax planning. I do not believe that it had to do with BYU major sports aspirations. Rather, it was the very real concern that the LDS Church and BYU would lose its tax exemption, combined with a lawsuit involving the Boy Scouts of America.

As a religious institution, the Mormon Church and BYU are charitable entities recognized as tax-exempt by the IRS. This means that persons who donate to them can claim the donations as tax deductions. The Church’s budget comes largely from charitable contributions. The ability of donors to claim tax deductions is, in some minds, a form of government subsidy.

A group of black taxpayers and their minor children attending public schools in Mississippi brought a class action on May 21, 1969 against the United States, seeking to enjoin the Secretary of the Treasury and the IRS from according tax exempt status to private schools in Mississippi which excluded African-American students on the basis of race or color.

In July 1970, while the lawsuit was pending, the IRS issued two Releases, announcing that “it can no longer legally justify allowing tax-exempt status to private schools which practice racial discrimination nor can it treat gifts to such schools as charitable deductions for income tax purposes.”

Meanwhile, a group of white citizens entered the lawsuit, claiming that they had a First Amendment right not to associate with persons of other races, which would be infringed by the IRS’ revocation of the white private schools’s tax-exempt status.

The Supreme Court ruled in favor of the black plaintiffs, concluding that the IRS actions of denying tax -exemption to discriminatory schools was constitutional, and that it could disallow deductions for persons making gifts to such schools. Regarding the interests of the white families, the court noted that its decision did not prevent them from sending their children to segregated private schools at their own expense, paying the full cost of education at such schools. Such schools, however, were not entitled to public support, as which tax-exemption qualified. It reasoned that the Federal Government could not under the Constitution give direct financial aid to schools practicing racial discrimination, but that tax exemptions and deductions certainly constitute a Federal Government benefit and support. “While that support is indirect, and is in the nature of a matching grant rather than an unconditional grant, it would be difficult indeed to establish that such support can be provided consistently with the Constitution” [17].

Of course, the schools at issue in Green v. Connally were truly segregated, in that blacks were not allowed admission into them. This was a distinction that had been used by Mormon leaders. During a Devotional address on November 25, 1969, President Wilkinson addressed students and faculty on these recent accusations of racism at BYU, citing the BYU admission policy that stated students are admitted regardless of their race as long as they maintain the ideals and standards of the Church.

In the 1970s, the IRS turned its sights on a southern college known as Bob Jones University. Like BYU, Bob Jones University permitted black to enroll, and claimed not to be segregated. However, it treated black and white differently. The sponsors of the Bob Jones University, a fundamentalist Christian institution in Greenvile, South Carolina, believed that the Bible forbade interracial dating and marriage.

To effectuate these views, blacks were completely excluded from the school until 1971. From 1971 to May 1975, the University accepted no applications from unmarried blacks, but did accept applications from blacks married within their race.

Beginning in May 1975, the University permitted unmarried African-Americans to enroll, but a disciplinary rule prohibits interracial dating and marriage. That rule read:

There is to be no interracial dating
1. Students who are partners in an interracial marriage will be expelled.
2. Students who are members of or affiliated with any group or organization which holds as one of its goals or advocates interracial marriage will be expelled.
3. Students who date outside their own race will be expelled.
4. Students who espouse, promote, or encourage others to violate the University’s dating rules and regulations will be expelled.

The University continued to deny admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating.

On April 16, 1975, the IRS notified the Bob Jones University of the proposed revocation of its tax-exempt status because of its discriminatory policies.

The IRS officially revoked the University’s tax-exempt status in January, 1976. Bob Jones University challenged the revocation. The case would ultimately reach the U.S. Supreme Court. The government took the position that Bob Jones University’s racial policies made it ineligible for tax-exempt status.

If the IRS’ decision in Bob Jones University was affirmed by the Supreme Court, it would close BYU’s argument that its racial policies were not discriminatory. The Church now was looking at the very real prospect that BYU would lose its tax-exempt status. That would be bad news indeed.

Other things were happening. In 1977, President Kimball was distressed when he was served with a subpoena to give a deposition in a case brought by the NAACP against the Boy Scouts of America and Troop 58, organized in one of the wards of the Liberty Stake in Salt Lake City. There were two black Scouts in the troop. One of them complained to the black ombudsman for Utah because he was deprived of the chance to become the senior patrol leader of his troop because of the Church procedure that the senior patrol leader had to be the deacons quorum president. It was contended that this violated the young man’s civil rights.

While the Church was not a party to the suit, the Church’s practice was a key issue in the litigation. It was for this reason the subpoena was issued to President Kimball. And because it was a subpoena duces tecum, he was directed to bring to the deposition every document relating to the Church’s policy withholding the priesthood from blacks.

Because he had had little to do with litigation during his life and was uncertain about what faced him, President Kimball was distraught. He could not sleep. He reportedly could talk of little else in the meetings with his counselors.

As we know, the change finally came in June 1978, as the Bob Jones University tax case was winding its way through the courts. Coincidence? I doubt it.
________________

[1] U.S. v. Barlow, Slip Copy, 2009 WL 2516843 (10th Cir. 2009).

[2] Wilkinson v. United States, 304 F.2d 469 (Ct Cl. 1962).

[3] Paxman v. Commissioner of Internal Revenue, 50 T.C. 567 (Tax 1969); Thatcher v. Commissioner of Internal Revenue, 61 T.C. 28 (Tax 1974); Buehner v. Commissioner of Internal Revenue, 65 T.C. 723 (Tax 1976); Kleinman v. C.I.R., T.C. Memo. 1984-347, 1984 WL 14996 (Tax 1984); Reile v. C.I.R., T.C. Memo. 1992-488, 1992 WL 206149 (Tax 1992); Torney v. C.I.R., T.C. Memo. 1993-385, 1993 WL 325063 (Tax 1993); Ferguson v. C.I.R., 108 T.C. No. 14, 108 T.C. 244 (Tax 1997); Ferguson v. C.I.R., 174 F.3d 997 (9th Cir 1999); Talmage v. C.I.R., T.C. Memo. 2008-34, 2008 WL 440831 (Tax 2008).

[4] Coultas v. C. I. R., T.C. Memo. 1972-1, 1972 WL 2135 (Tax 1972); Watkins v. C. I. R., T.C. Memo. 1973-267, 1973 WL 2445 (Tax 1973); Jeppsen v. C.I.R., T.C. Memo. 1977-274, 1977 WL 3565 (Tax 1977); Jeppsen v. C.I.R., T.C. Memo. 1978-343, 1978 WL 3021 (Tax 1978); Gifford v. C.I.R., T.C. Memo. 1980-351, 1980 WL 4188 (Tax 1989); Lyman v. C.I.R., T.C. Memo. 1984-115, 1984 WL 15437 (Tax 1984); Castleton v. C.I.R., T.C. Memo. 2005-58, 2005 WL 697961 (Tax 2005).

[5] White v. U.S., 514 F.Supp. 1057 (D.Utah 1981); Brinley v. C.I.R., T.C. Memo. 1983-408, 1983 WL 14392 (Tax 1983); White v. U.S., 725 F.2d 1269 (10th Cir. 1984); Brinley v. Commissioner of Internal Revenue, 82 T.C. No. 70, 82 T.C. 932 (Tax 1984); Brinley v. C.I.R., 782 F.2d 1326 (5th Cir. 1986); Davis v. U.S., 664 F.Supp. 468 (D.Id. 1987); Davis v. U.S., 861 F.2d 558 (9th Cir. 1988); Hernandez v. C.I.R., 490 U.S. 680, 109 S.Ct. 2136 (1989); Davis v. U.S., 495 U.S. 472, 110 S.Ct. 2014 (1990).

[6] Malad Second Ward of the Church of Jesus Christ of Latter-Day Saints v. State Tax Commission, 75 Idaho 162, 269 P.2d 1077 (Idaho 1954); Kunes v. Mesa Stake of Church of Jesus Christ of Latter-Day Saints,17 Ariz.App. 451, 498 P.2d 525 (Ariz.App. 1972); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter- Saints v. Department of Revenue, 1975 WL 1126 (Or.Tax, 1975); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Department of Revenue, 276 Or. 775, 556 P.2d 685 (Or. 1976); New Jersey Stake of Church of Jesus Christ of Latter Day Saints v. Morris Township, 3 N.J.Tax 572 (N.J.Tax, 1981); Utah County, By and Through County Bd. of Equalization of Utah County v. Intermountain Healthcare, 709 P.2d 265 (Utah 1985); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day v. Ada County,123 Idaho 410, 849 P.2d 83daho 1993); Maricopa County v. State, 187 Ariz. 275, 928 P.2d 699 (Ariz.App. Div. 1. 1996); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Department of Revenue, 1997 WL 734056 (Or.Tax 1997).

[7] IHC Health Plans, Inc. v. C.I.R., T.C. Memo. 2001-246, 2001 WL 1103284 (Tax 2001); IHC Group, Inc. v. C.I.R., T.C. Memo. 2001-247, 2001 WL 1103286 (Tax 2001); IHC Care, Inc. v. C.I.R., T.C. Memo. 2001-248, 2001 WL 1103289 (Tax 2001);IHC Health Plans, Inc. v. C.I.R., 325 F.3d 1188 (10th Cir. 2003)

[8] Smith v. C.I.R., T.C. Memo. 1979-51, 1979 WL 3147 (Tax 1979).

[9 Markovsky v. C.I.R., T.C. Memo. 1985-283, 1985 WL 14910 (Tax 1985).

[10U.S. v. Brown, 600 F.2d 248 (10th Cir. 1979).

[11 Tschudy v. C.I.R., T.C. Memo. 1993-567, 1993 WL 491379 (Tax 1993)

[12 Codner v. U.S., 17 F.3d 1331 (10th Cir. 1994).

[13 U.S. v. Marsh, 144 F.3d 1229 (9th Cir. 1998).

[14] Hawkins v. C.I.R., T.C. Memo. 2003-181, 2003 WL 21436740 (Tax 2003).

[15]Thomas v. U.S., 2004 WL 1571968 (D.Me. 2004);Taylor v. U.S., 292 Fed.Appx. 383 (5th Cir. 2008).

[16]Smith v. C.I.R., T.C. Summ.Op. 2007-57, 2007 WL 1120287 (Tax 2007).

[17] Green v. Connally, 330 F.Supp. 1150, (D.D.C. 1971), aff’d, 404 U.S. 997, 92 S. Ct 564 (1971).