Last weekend (February 18-19, 2005) Columbia Law School hosted the second annual LDS Law Students Conference. The first was held last year here at Harvard, as the brainchild of Zeke Johnson and H.L. Rogers. After a successful second year, it looks like this will become an enduring institution, intended to gather together LDS law students from across the country to meet, socialize, and learn about issues particular to LDS students and lawyers. From what I recall hearing (this may not be accurate), we had about 130 attendees from about 30 schools, compared to about 80 attendees last year.

I tried to take pretty good notes on all of the speakers, and now I offer my journalism/commentary on the conference proceedings. It’s not quite as quick a turnaround as those bloggers who reported on the Democratic and Republican conventions this summer, but to my knowledge, this is the only place you’re going to get this information without having been there. So here you go.

Elder Ralph W. Hardy, “Whate’er Thou Art, Act Well Thy Part”

The conference kicked off with a keynote address from Elder Ralph W. Hardy, an Area Authority Seventy and a member of the firm Dow, Lohnes & Albertson in Washington, DC. Elder Hardy counseled the conference attendees to “never permit your eye to lose sight of … the living apostles and prophets.”

Taking the most spiritual bent of any of the conference speakers, Elder Hardy chose to speak more in his capacity as a Seventy than in his capacity as a lawyer. He emphasized the importance of relying on the gospel and the living prophets in order to have a happy and successful legal career. Drawing from examples of his own experience in meeting, studying, and following the prophets, he testified that the guidance he received from the Church was not only helpful in his professional life, but necessary. “I can’t imagine undertaking this profession without the benefit of the Holy Ghost,” he said.

He warned us budding lawyers to always remember who we are, in the sense that Gordon B. Hinckley never forgets his prophetic role. We should avoid the appearance of evil, and keep to the baseline standards of the gospel in all of our professional dealings (paying special attention to what we do on business trips). Interestingly, he advised us to always accept callings in the church, even though we may feel that it will be difficult or impossible to fulfill both demanding church and professional responsibilities. I particularly liked this piece of advice not so much because I thought we needed it more than other advice, but because it provided a simple example of a way to keep priorities straight. One of the things I’m most worried about as I careen toward graduation is not getting so caught up in my work that I forget what’s really more important to me.

And not only should we apply the teachings of the gospel in our legal careers, Elder Hardy admonished us to apply the skills we are learning in law school to our spiritual lives as well. In law school, we learn to look to reason, precedent, and evidence in order to make decisions and seek truth. When it comes to spiritual decision-making, we should do all that and then take it to the Lord and let the whisperings of the Spirit guide us and teach us the answers. He noted that four of the five U.S. Senators who are LDS are also lawyers (sorry, Bob Bennett) and proclaimed that the now-annual J. Rueben Clark Society broadcast (which was held just a week prior) demonstrates the importance of the connection between lawyers and the kingdom of God.

Panel, “LDS Women in the Law: Pathways and Priorities”

Saturday morning’s first session was geared toward the women who crammed the first few rows of the lecture hall at Columbia, but proved to be one of the most valuable sessions for those men who attended as well. Kristen Smith Dayley (a former law firm associate who gave up certain partnership to follow her husband to a new job), Julie McAdams (a junior associate at a New York law firm) and Christine Durham (Chief Justice of the Utah Supreme Court) presented the conference’s major foray into the “lifestyle” issues that plague LDS lawyers of either gender. In fact, Zeke was quoted as having said that as an LDS man, he regularly feels he has more in common with women lawyers than with men—he wants to be able to spend as much time as possible at home with his family.

Kristen set the tone of the panel—which I felt was well-selected because of the different stages of life the panelists are all in—by declaring, “There is no one-size-fits-all, no matter how your brother-in-law may interpret the Proclamation on the Family.” Perhaps she disappointed some listeners hoping for easy answers, but the honest truth is, as Kristen said, that it’s very hard to separate your professional decisions from the personal decisions of marriage and family. Depending on where you are in terms of personal life, you will make different choices for your career, and that’s OK. But you need to be sure to do what’s best for you and your family. Speaking of her decision to leave her firm to follow her husband to another city, she said that literally all of the partners in her office thought she was crazy and told her, “You’re ruining your life.” However, most of the associates in the firm reacted with “admiration and envy.” I wondered if that was because associates haven’t yet become so jaded that they believe that partnership is the zenith of human existence, or if the partners were in denial. When it comes to lifestyle issues, I think it might be best to listen more closely to the associates.

Justice Durham took issue with the catch-phrase “work-life balance.” She said that “balance” implies some form of equipoise, and “if that moment has occurred in any of your lives, go back to it and stay there forever.” Her career was typical of any lawyer’s, bringing surprises and setbacks. She advised us to first and foremost, be clear in our own minds what we care most deeply about, and then to align our choices accordingly when they arise. That said, life is long and you need to be flexible in reacting to the situations you’ll face. The most important thing is doing what you want to be doing. And marry well, establishing a full partnership in order to face these choices together.

Julie offered some practical advice geared toward younger associates. Take advantage of mornings. If you have to travel, use all the time you can while you’re away from your family to bill hours, so you can bill fewer when you’re home. Because junior associates don’t have a lot of control over their schedule, she’s found that it’s necessary to be spontaneous and take advantage of opportunities for personal fulfillment and work when they arise.

When it came time for questions, the most insightful one was a man who asked what men can do to make working at a law firm easier for women. I expected the women’s answers to have something to do with personal treatment—don’t expect less of us, don’t flirt with us, don’t pay us less, etc. But I was surprised when they said that the best thing a man can do to make women’s lives easier in law firms is to set a good family-friendly example. Go home to your own family. Demonstrate how important they are to you. Justice Durham cited statistics that 93% of U.S. law firms have some sort of part-time or family leave policy written into their bylaws. But only 3% of associates and 5% of partners nationwide use these programs. There’s a big disparity between what’s on paper and the way things really are. Men can make things easier for women (and themselves) by taking advantage of these policies themselves, encouraging women to do so as well, and not holding it against them when they do.

Kevin Worthen, “The Constitution and Native American Religions”

Dean Kevin Worthen, dean of the J. Reuben Clark Law School at BYU, used Native American religion as an example to demonstrate basic religious freedom issues that all religious people (and especially religious lawyers) should deal with. I felt it was the oddest lecture of the conference because it didn’t have anything to do specifically with Mormonism—a fact which Dean Worthen acknowledged as he began—but it was somehow still very appropriate. After all, as Dean Worthen said a colleague of his had once proclaimed, “Indians are the Mormons of the Twentieth Century.”

The talk began with an elaborate description of a particular provision of the Endangered Species Act, which provides that you cannot possess a bald or golden eagle, alive or dead, or any part thereof. Many Native American religions, however, require the use of eagle feathers, so there are religious exceptions to the law that are strictly defined according to tribal membership and other factors. I learned new facts I never knew. For example, did you know that every time a bald eagle dies—of whatever cause—its body is shipped by the federal government to Commerce City, Colorado, where its feathers are distributed to Indians who have been on a waiting list for months?

Dean Worthen’s lecture presented the question: Are religious exceptions to laws compatible with a scheme of equality? He ran through several ways in which this particular eagle feather law discriminates based on ancestry and political affiliation, among other things, in the name of religious freedom. In the end, he seemed to advocate religious exceptions, but narrowly defined ones that wouldn’t necessarily apply to everyone who sought it.

Sarah Barringer (“Sally”) Gordon, “Prosecuting Polygamy: Lessons From the Untapped Records of Utah’s Territorial Courts”

To me, the conference’s most fascinating talk was this foray into Mormon legal history. Prof. Gordon teaches law and history at the University of Pennsylvania, and is currently preparing a forthcoming book, together with a BYU law professor, on the history of the Utah territorial courts and their dealings with polygamy. This lecture was a preliminary presentation of their research, and I can’t wait for the book to come out.

Prof. Gordon claimed that she and her co-author are the only two people, living or dead, who have actually read every single Utah Territory judicial record. Her claim is that we can’t understand nineteenth-century U.S. criminal or religious law without looking closely at the cases in Utah.

The whole lecture was centered around an array of revealing facts. For example, only 6% of the criminal cases in Utah between 1871 and 1896 were unrelated to polygamy. Unlawful cohabitation was by far the most common charge, constituting well over 50% of the cases because it was far easier to prove than bigamy or adultery. Criminal cases outnumbered civil cases 20 to 1 in that period, largely because the church court system absorbed all of the normal civil cases itself. Prof. Gordon has pinpointed prosecution trends, debunked popular perceptions of polygamy prosecution (for example, many anti-Mormon lawyers defended polygamists in court), and explained how conflict over religion was “legalized”—brought into court rather than other forums.

Prof. Gordon prefaced and concluded her talk with a plea for help. She needs assistance sifting through the information for the book, and encouraged us participants to contact her. She also wants any information—even anecdotal—anyone has on prosecution of women for fornication, the treatment of women by the Utah territorial justice system, and any Utahns who were served process but were not pursued further and taken to court. If anyone out there on the big wide internet can help her out, look up her email address at UPenn Law School’s web site.

Panel, “The Intellectual Connection Between Law and Mormonism”

A panel of three young attorneys took on three different approaches to establishing intellectual relationships between Mormonism and the law. This was the most theoretical of the presentations at the conference, presented by three very intelligent people: Kaimi Wenger, Todd Lundell, and Nathan Oman, all associates at prestigious law firms. Kaimi and Nate are regular bloggers at Times & Seasons.

Kaimi first took up the question of whether it makes sense to make religious-based legal policy arguments. Should we be able to draw upon our religious experience to argue that a certain law or regulation is a good idea or a bad idea? How do we reconcile the different goals of religion and law? Kaimi focused his remarks principally on the familiar example of religiously grounded criminal laws, but presented it in a way that was more thoughtful than such discussions usually are. Of course there’s a difference between sin and crime, although the standards in many religious and criminal codes are the same. So while it’s certainly not necessary to base criminal law on religious grounds, Kaimi wondered if it’s permissible. He argued that because religion (at least our religion) allows for agency and some interpretation issues (Do we tithe on gross or net? Is Coke encompassed in the Word of Wisdom?), it might not be a good idea to impose a strict criminal code enforcing compliance to a set of black-letter rules. I found this argument only slightly problematic because while it is true that God grants us agency, that doesn’t prevent him from telling us what to do and punishing us if we use our agency to choose to act contrary to his will. Of course, I suppose we would rather have God do the punishing rather than the state (or better, even if the state does punish sin/crime, God will get his in the end too). Kaimi also posited the question: At what point does support for Law X due to religion become unconstitutional establishment of religion? A good question.

Todd argued that Mormonism presents a good case for the existence of natural law, defined as certain norms inherent in nature. His analysis focused on Doctrine & Covenants Section 134, a document written by Oliver Cowdery in 1838 and described by Gordon B. Hinckley as the “charter of the doctrine of the Church concerning law and government.” Section 134 proclaims that government is instituted of God, a position which is inconsistent with positivism (the opposite of natural law) because positivism requires the action of a sovereign. Verse 2 declares that laws must protect certain rights, which presumably exist before laws are enacted to protect them. And verse 4 and verse 7 contain language of what law is “bound” or required to do—concepts which deny the supreme authority of positivistic law. I found myself wondering, though, as I put together Kaimi’s and Todd’s presentations, that if there really is evidence for natural law in Mormon doctrine, shouldn’t that require us to put our religious beliefs about that natural law into practice by enacting laws based on our religious (natural law) beliefs?

Nate took up the question of what it might mean to speak of Mormon perspectives on the law. He spoke with authority, as he claimed to have made up the definition of Mormon perspectives on the law with a BYU law professor during a car ride from Provo to Salt Lake a few years ago. There are three questions that Mormon perspectives on the law answer. First: What has been the nature of the Mormon legal experience? It was obvious that this is an area of particular interest to Nate (“It’s a lot of fun!”), as he encouraged any budding Mormon legal scholars in the audience to study our history in “legally sophisticated ways.” Second: What does legal thinking tell about the nature of Mormonism? For example, Nate explained that normal Sunday School definitions of the term covenant imply that it is essentially contractual in nature—I agree to do something and God agrees to do something. However, a closer study of how covenants are made in the scriptures presents a different legal theory: status. The blessings of covenants come not because of what we promise, but because of who we are, and who God is. Legal terms like “heir,” “king,” and “children” appear frequently in the scriptures, and distinguishing the legal basis of the religious concept provides a deeper understanding of it. Third: What can Mormonism teach about general questions of law? This is a question that needs a lot of development, Nate said, because Mormonism doesn’t have tools for understanding the legal system like, say, economics does. What we do (or did) have, though, is a private legal system of ecclesiastical courts that fits into the notion of legal pluralism. That might be one jumping off point for more inquiry into this question. As Nate finished his presentation, the person sitting next to me (a friend of his) said, “It’s hard to listen to him and not wish for 50 more I.Q. points.” I agreed wholeheartedly.

Corey Chivers, “The LDS International Lawyer”

Providing yet another perspective on the varied lives of LDS lawyers, Corey Chivers, a partner at Weil Gotshal & Manges, talked about his experiences as an international lawyer. His personal experience ranges from frequent travel to work on transactions in a large number of foreign countries to a ten-year stint living in London as a lawyer.

Most of Corey’s advice was anecdotal, as he tried mostly to convey what it’s like both to be a lawyer abroad and a Mormon abroad. This is certainly the type of job for a person who likes new and exciting experiences, like sitar music in the chapel. He spoke of the challenges of dealing with cultural differences, the flatter nature of the Church hierarchy outside the U.S., and the opportunity to be strengthened by being in an environment where the Church is still growing. In fact, the most relevant comment to me (as a person who has little interest in living abroad and whose wife is quite opposed to the idea) was a story about his initial job search out of law school. He said that as an Idaho Falls Mormon boy coming out of Columbia Law School, he was heavily recruited by the law firms in Salt Lake, largely because he was LDS (funny how I didn’t get the same treatment when I was looking at Salt Lake firms). In a brash moment in one of his interviews, he asked the LDS partner if he thought it would be wrong for him to come work in Utah, when the Kingdom needs building elsewhere. The partner, obviously a Utah Mormon, was speechless. Corey obviously answered his own question affirmatively.

This is an issue that I’ve struggled with myself as I’ve pondered career options. As I was born and raised in Utah and my parents are still there, I have a greater incentive to live there. But at least for the time being, I think I can have a better influence on people around me and have a more complete experience if I live somewhere else. I don’t need to be the bishop of the Hyde Park Ward, as Corey was, to get that experience, though—I can just stay here on the East Coast for the time being.

Chief Justice Christine Durham, “What Goes Around Comes Around: The New Relevance of State Constitution Religion Clauses”

The final keynote speech of the conference was the command performance of Christine Durham, Chief Justice of the Utah Supreme Court. As the premier interpreter of one state’s constitution and a long-time student and professor of state constitutional law, she presented a unique look at state constitutional religion provisions—something rarely encountered in law school. In fact, she asked the audience who had dealt with state constitutional law at all in law school, and only about five people raised their hands.

Justice Durham’s lecture was structured as a history lesson, tracing the path of religious provisions in state constitutions from back in the day when almost all states had an officially established religion. In colonial times, this seemed the correct and normal thing to do, as established religions served as gatekeepers to public offices and unified the populace. The Anglican South turned toward disestablishment at the time of the revolution, and the North hung on until the 1830s, relinquishing state control of religion largely in an effort to keep Catholics from attaining political power. Similarly, the advent of free exercise provisions (which often existed alongside established churches) came about because evangelical religions didn’t want their religion to be beholden to the government (an argument that parallels the LDS Church’s refusal to participate in faith-based initiatives with the government today).

Originally, most religion claims were brought in state court under state constitutional provisions—not under the federal constitution’s First Amendment. Of course, before the incorporation of the federal religion clauses through the Fourteenth Amendment, the state provisions were all that could apply to state action. That’s why, as much as Mormons hate(d) President Martin Van Buren for telling Joseph Smith that “Your cause [redress from the state-sanctioned persecutions in Missouri] is just, but I can do nothing for you,” Van Buren was right. There was nothing the federal government could do for the Mormons because it was a state matter and would have to be opposed under state law. Interestingly, since the Smith case in 1990, which hampered religious freedom by promulgating a rule-of-general-applicability test to First Amendment religion claims, many scholars and lawyers have begun turning back to the state constitutional provisions, which often are more detailed and more protective of religion than the federal constitution.

Conclusion

As Zeke Johnson said in his closing remarks, “Leave it to the Mormons to resist New York City and discuss legal topics.” Fortunately, I’ve been to New York enough that its charms were easy to resist for a weekend. But the draw of the religious and intellectual discussion at the conference was not to be missed. I felt like the conference had something for everyone: lifestyle, religious freedom, history, intellectuality, spirituality, and diversity. I hope this becomes a widespread tradition, and am proud to have had a part in helping get it off the ground (I made the name badges last year!).