Re: Agenda and persecution of Mormons
The recent thread concerning the change in the LDS Church regarding polygamy--and let's be precise, it was polygamy not merely plural marriages-raises critically important questions about constitutional, moral, political, social, and personal change. (For example, change is central to the identity of traditions upon which constitutional law, in some sense, rests.) One might describe these questions more generally as questions about theoretical and practical change--changes in judgments (beliefs, convictions, positions, and so forth) as well as changes in conduct (action, intention, decision, and so forth). Some of the important questions in this domain are: (1) What counts as a change? (a) Must the change be self-conscious? (b) Must it be permanent or at least intended to be permanent? (c) If permanence, or the intent to be permanent, is required, how do we know when such a change is permanent? If so, how do we acquire this knowledge? (2) In institutional contexts, who speaks for the institution? Its leaders? The members? (a) What happens if leaders and members disagree? (b) Must there be a process which serves as both a necessary and sufficient condition for institutional change? (c) Is so, shouldn't we conclude that non-canonical changes suggest a change in the institution, not just its judgments or conduct? I do not think the above exhausts all possibilities; indeed, I'm pretty certain additional questions will easily come to mind. One final point about the LDS Church and polygamy: Many different conceptions of change are possible, but I would suggest that restrictive conceptions of change--for example conceptions requiring that the change (or the intent to change) be permanent --unduly distort the critically important phenomenon of change, and therefore, hamper our understanding how people and institutions operate. Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
I don't see how one can argue that the LDS church hasn't changed its religious views on polygamy. We know that they now excommunicate someone for engaging in polygamy. To say that this was just a concession to civil authority is pretty demeaning to the church, I think, suggesting that they would so greatly compromise their religious beliefs to this degree to civil authority. Perhaps they would accept the law as against their beliefs but if those beliefs are sincere they would not aggressively enforce the law. The law certainly didn't require that they excommunicate those who practiced polygamy. Also, to Paul Finkelman, how do you compel polygamy? Do you punish men for having only one wife? Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Agenda and persecution of Mormons
The LDS Church might believe in both 1] polygamy and 2] subordination to legitimate civil authority as religious requirements. Then if these came into conflict, some resolution would have to be reached, and it might give precedence to subordination. I take it this is the thrust of Nelson Lund's suggestion -- as distinguished from the more descriptive Realist point that religious authorities might be expected to bow to secular pressures, and then to bounce back when those pressures eased. On subordination to civil authority, here's a snippet from a 1987 address by Dallin Oaks expounding the Mormon doctrine that the U.S. Constitution is divinely inspired (a doctrine I recall being questioned on when I gave a talk at BYU Law School some years back.) See http://saugus.byu.edu/publications/oaks.htm U.S. citizens have an inspired Constitution, and therefore, what? Does the belief that the U.S. Constitution is divinely inspired affect citizens' behavior toward law and government? It should and it does. U.S. citizens should follow the First Presidency's counsel to study the Constitution.17 They should be familiar with its great fundamentals; the separation of powers, the individual guarantees in the Bill of Rights, the structure of federalism, the sovereignty of the people, and the principles of the rule of the law. They should oppose any infringement of these inspired fundamentals. They should be law-abiding citizens, supportive of national, state, and local governments. The 12th Article of Faith declares: We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law. The Church's official declaration of belief states: We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them. . . . We believe that all men are bound to sustain and uphold the respective governments in which they reside. (DC 134:1, 5) Tom Grey Stanford Law School [EMAIL PROTECTED] Frank Cross [EMAIL PROTECTED]To: [EMAIL PROTECTED] .EDU cc: Sent by: DiscussionSubject: Re: Agenda and persecution of Mormons list for con law professors [EMAIL PROTECTED] v.ucla.edu 07/16/2003 07:14 AM Please respond to Discussion list for con law professors I don't see how one can argue that the LDS church hasn't changed its religious views on polygamy. We know that they now excommunicate someone for engaging in polygamy. To say that this was just a concession to civil authority is pretty demeaning to the church, I think, suggesting that they would so greatly compromise their religious beliefs to this degree to civil authority. Perhaps they would accept the law as against their beliefs but if those beliefs are sincere they would not aggressively enforce the law. The law certainly didn't require that they excommunicate those who practiced polygamy. Also, to Paul Finkelman, how do you compel polygamy? Do you punish men for having only one wife? Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Agenda and persecution of Mormons
Re Marci Hamilton and Tom Grey's point: I recognize very well that religions could with integrity choose to comply with civil society and even be informed by civil society in their beliefs. However, if the LDS thought that polygamy was religiously compelled and then, in the face of government opposition, not only agreed to give up polygamy but also excommunicated those who disagreed, they are going far beyond the demands of civil society. I think the LDS take the position that there change was a sincere change in belief, not merely a compromise with civil authority. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Nevada Supreme Court federal action
I agree that Coleman, although alive, has been pushed into a corner by Raines. And I acknowledge that it may be still further narrowed to situations involving US Supreme Court review of state court judgments where the state court has recognized legislative standing -- and therefore not applicable to the case filed in federal district court. Why, then, do I call legislators the best plaintiffs (apart from the Rooker Feldman problem)? It isn't because I think that they have an easy case, but rather that I don't see how the other plaintiffs are in a better position. In your view, who is a better plaintiff? The claim by voters seems more attenuated than the claim by legislators -- indeed, if seems derivative of the legislator's claims. Isn't the essence of the voters' claim that their own votes have been diluted because the votes of their representatives in the legislature have been nullified by an illegal vote-counting rule? (There is also a claim that those who voted for the constitutional amendment imposing the 2/3 voting requirement have had their votes diluted and nullified; are they the best plaintiffs?) The claim by taxpayers seems premature, at least until the bill is passed by both Houses and signed by the Governor. And even then, wouldn't the Tax Injunction Act bar the federal district court's jurisdiction over their claim, at least so long as Nevada allows them either to resist a state tax enforcement action or to pay the tax and file for a refund on the ground that the tax has been illegally imposed? Am I missing something? The more I think about the Nevada Court's decision, the more troubled I am. Suppose the political positions in the state government were reversed, and the legislature kept passing tax bills that were vetoed by the Governor, but lacked the supermajority required to overcome the veto. See Nevada Constitution, Art. IV, section 35. Should the procedural obstacle of a gubernatorial veto or a supermajority requirement to overcome it give way to the substantive obligation to fund a particular government expense? How about if the House and the Governor supported a bill, but the impediment was the Senate? Should the procedural requirement of bicameralism be dispensed with? None of this necessarily means that there is a violation of the federal constitution afoot, but is anyone willing to defend the decision as a matter of state constitutional law? As Congressman John Dingell once said, I'll let you write the substance . . . and you let me write the procedure, and I'll screw you every time. Ed Hartnett Seton Hall
Re: Agenda and persecution of Mormons
Frank Cross wrote: However, if the LDS thought that polygamy was religiously compelled and then, in the face of government opposition, not only agreed to give up polygamy but also excommunicated those who disagreed, they are going far beyond the demands of civil society. I think the LDS take the position that there change was a sincere change in belief, not merely a compromise with civil authority. According to my understanding of LDS theology, the president of the LDS church is not just a leader, but is also revered as a prophet, seer, and revelator, uniquely empowered to make the will of God known to the church. This includes situations where a revelation from God has discontinued a former practice of the church. (Cf. the role of Peter in the New Testament Church, especially with regard to the revelation allowing the preaching of the gospel to the gentiles in Acts 10.) Thus the current doctrine of the LDS church is determined not by the historical teachings of the church -- which are still upheld as right for their time -- but by the current teachings of the church, which are considered right for the current time. Thus, as I understand it, the political pressure was probably the catalyst that caused the president of the church to inquire of God, but once the revelation was received, the new teaching was based on a sincere change in belief that God had authorized the new doctrine.
Re: Agenda and persecution of Mormons
In a message dated 7/16/2003 11:56:45 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: The LDS Church might believe in both 1] polygamy and 2] subordination to legitimate civil authority as religious requirements. Then if these came into conflict, some resolution would have to be reached, and it might give precedence to subordination If Tom's characterization is correct, the distinction between retaining religious beliefs and accommodating American law vanishes as a contrast between religion and secularity. Instead, this conflict is a religious conflict which must be settled internally to the religion. If the LDS Church changes from (1) to (2), its view remains the same only in the sense that either view (in conjunction with the canonical method for ranking them) is religiously sanctioned. There is nonetheless a change in the prohibitions members of the Church are obligated to follow. Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
Tom Grey wrote: The LDS Church might believe in both 1] polygamy and 2] subordination to legitimate civil authority as religious requirements. Then if these came into conflict, some resolution would have to be reached, and it might give precedence to subordination. I take it this is the thrust of Nelson Lund's suggestion . . . Exactly right, both as a summary of my suggestion and as a synopsis of the actual evidence that this thread has generated. Nelson Lund
Re: Agenda and persecution of Mormons
A follow-up on my comment that I have little doubt that the Church of LDS would have maintained polygamy had the surrounding culture been more tolerant. At a conference I was at last year, a distinguished LDS law professor said that the basis of the revelation was the Prophet's being told that members of LDS had proven their devotion to God by the suffering they underwent because of their fidelity to the norm of polygamy. Having demonstrated their mettle, they were relieved from its obligation (and the risk of continued persecution). I'm not identifying the scholar because this is my recollection, and I don't want to put words in his mouth about an issue of such theological (and practical) importance If I am correct in my recollection, though, then it does seem that one could confidently say, even if one accepts the possibility of revelation, that no such revelation would have been delivered had persecution not been attached to the practice of polygamy. sandy
Re: Agenda and persecution of Mormons
Frank Cross asks: Would it count as evidence against this thesis if the LDS church rejected polygamy even in nations where the practice is legal? The initial challenge is explaining the change in LDS position in 1890, and I think there's not doubt that it was sparked by the persecution it was receiving from the US. I presume that in the intervening 110 years, the ban on polygamy has taken on a considerably stronger valence, so I don't see that LDS practices in those countries where polygamy is legal (primarily Moslem countries where, I suspect, the LDS missionaries are most unwelcome in any event) would count as evidence for what triggered the initial event in the US in 1890, when the Church was restricted, I presume, almost entirely to the US. sandy
Re: Justice Kennedy's Libertarian Revolution
I did some research on ante-bellum notions of due process and law of the land some years ago, never published, but the upshot was consistent with what Mark says. The standard modern view captured by Ely's remark about substantive due process being like green pastel redness or whatever is an anachronism. It wasn't so much that the no A to B and related outcomes were characterized as substantive rather than procedural -- it was that the substance/procedure distinction, so fundamental to us, wasn't widely familiar until the late 19th century. There were not well-recognized categories of substantive law and procedure until Bentham's analytical jurisprudence, and the related procedural reforms (with the single civil action meant to be transsubstantive) got well-established in the professional discourse, which happened mostly after the Civil War, and even then took a while to sink in. The much older and still-familiar right-remedy distinction is quite different -- remedies fall on the substantive law side of the Benthamite substance/procedure split. It's worth noting that there's an easy translation of the ante-bellum due process law into our categories, by way of separation of powers. A statute conveying Blackacre from A to B deprives A of property without due process of law -- even if A has a right to a judicial trial on the issues whether the claimant is B and the land is Blackacre -- because legislatures can only legislate, and a bare decree like that isn't properly legislation. This is the tack Corwin took in his early 20th C articles on the ante-bellum case law, which allowed him to call most of those cases procedural due process and (in good Progressive fashion) to stigmatize substantive due process as a late and illegitimate arrival on the scene, starting only with Dred Scott and with the NY case of Wynhamer in the late 1850s. But the ante-bellum lawyers and judges didn't feel any need to fit their arguments to a substance vs. procedure template and as I recall, none of them did so. I don't believe in all the contemporary attacks on Taney's Dred Scott opinion you'll find anything about it evading the limit of the due process clause to matters of procedure. Tom Grey Stanford Law School [EMAIL PROTECTED] Mark Graber [EMAIL PROTECTED] To: [EMAIL PROTECTED] U cc: Sent by: DiscussionSubject: Re: Justice Kennedy's Libertarian list for con lawRevolution professors [EMAIL PROTECTED] .ucla.edu 07/15/2003 05:23 AM Please respond to Discussion list for con law professors A fairly decent amount of research, IMHO, has demonstrated that due process was, contra Ely, historically understood as having substantive content. The classic violation of due process being a law that transferred title from A to B. Orth's book on Due Process is good on this. See also, Gillman, THE CONSTITUTION BESIEGED, James Ely's work and my Naked Land Transfers, in Vanderbilt 2000. Mark A. Graber
Re: Statutory rape laws
I know this is well-worn ground, but I'd be grateful for some elaboration, from Ann or others, on what distinguishes those stereotypes upon which the state may not rely from those generalizations upon which states and courts may -- indeed, must -- rely in order to carry out any inquiry into the closeness of fit between means and ends. And is the critical constitutional line thought to run between stereotype (bad) and generality (okay) or between stereotypes like this (bad) and stereotypes of some other sort (okay)? I'm not disagreeing with Ann's claim below, just wondering whether the line is something more than we know the difference when we see it. Mitch At 05:01 PM 7/15/2003 -0500, you wrote: the empirical sense that girls are more likely to be reluctant participants than boys, and thus more likely to be emotionally hurt by relationships gone bad (as relationships often do) -- does appear greater than the danger to boys. I don't see how, after U.S. v. Virginia and the recent Nevada v. Hibbs, a court can rely on a stereotype like this, no matter how accurate it is as a generality. Ann
