Clark MemorandumJ.Reuben Clark Law SchoolBrigham YoungUniversity | 1998

Spring | Summer

CMá

Remembering Lincoln the Lawyer

c o n t e n t s

Cover Illustration

Elvis Swift

2Remembering

Lincoln the

Lawyer

Kelly L. Andersen

38Portraits

LeGrande Fletcher

Steve Averett

Kristin Gerdy

Lorena Riffo

24Weimar on

the Wasatch?

Mormon Political

Alienation and the

Search for Power

Timothy E. Flanigan

34Civility:

A Necessity,

Not a Luxury,

in the American

Political System

Patrick A. Shea

20Testimony Before the

Senate Committee

on the Judiciary

Elder Dallin H. Oaks

Religious Freedom

and the LDS Law

Community

W. Cole Durham, Jr.

á

H. Reese Hansen, Dean

Scott W. Cameron, Editor

Charles D. Cranney, Associate Editor

Linda Sullivan, Art Director

John Snyder, Photographer

The Clark Memorandum

is published by the J. Reuben

Clark Law Society and the

J. Reuben Clark Law School,

Brigham Young University.

© Copyright 1998 by

Brigham Young University.

All Rights Reserved.

12Mourning Boerne

Hugh Hewitt

43Memoranda

Seeing the Elephant:

12 Western Legal

History Sources

Is This a Regional or

National Law School?

2 Clark Memorandum

REMEMBERING

INCOLN

K e l l y L . A n d e r s e n · I l l u s t r a t e d b y E l v i s S w i f t

As a child I was taught to respect and admire our 16th president, yet I really did not comprehend why he was

so great a man. I suspected it had something to do with the Gettysburg Address or, in general, that he had

been president during the Civil War. Yet beyond that vague feeling I really knew little about him. Not long

ago, while visiting a bookstore, I noticed a one-volume edition of Carl Sandburg’s monumental six-volume

epic biography of Lincoln1 and decided that although I could not afford the time to read six volumes, I most

certainly could read one. Besides, I reasoned, Sandberg was unquestionably an excellent writer and deserved

to be read, even if the study of Lincoln was inconsequential. I was not disappointed in the

book. It not only inspired a great respect for Lincoln, but it also bathed me with desire to know more and

more about this most admired of all u.s. presidents. I soon returned to the bookstore and bought Lincoln

biographies written by William H. Herndon2 (Lincoln’s law partner for more than 16 years), by Ward Hill

Lamon3 (Lincoln’s law associate in Danville, Illinois, where Lincoln traveled on the Illinois Eighth Circuit),

and by Isaac N. Arnold4 (an attorney who practiced before the same bar as Lincoln and who served in

Congress during Lincoln’s administration). After reading these well-written biographies,

I also read—for good measure—comprehensive biographies by Stephen B. Oates5 and David Herbert Donald.6

These, written more recently, drew upon hundreds of sources not available to biographers who

lived during Lincoln’s lifetime or even Sandberg’s. All these books, added to my own two-volume set of Lincoln’s

writings and speeches, have given me a great appreciation for Lincoln the man as well as Lincoln the lawyer.

A W Y E RTHE

·

·

·

4 Clark Memorandum

ed as to whether or not the Union itselfshould be preserved. One of the greatironies of the Civil War, as noted inMichael Shaara’s classic novel The KillerAngels,7 was that the North was divided infighting for the Union while the South wasunited in fighting for disunion.

As the North suffered one humiliatingmilitary defeat after another, many natural-ly blamed Lincoln. Discontent exploded in1864 when George McClellan, dischargedgeneral of the Army of the Potomac, cam-paigned against Lincoln for president on aplatform to immediately end the war.Smoldering antiwar embers flamed into aroaring, antiwar movement, which dwarfedanything witnessed in our generation dur-ing the Vietnam War.

To understand just how bloody theCivil War was—and how vibrant the anti-war movement became—it is necessary toput some statistics in perspective. The CivilWar, with its 600,000 dead, was thebloodiest war ever fought by American sol-diers—bloodier, in fact, than all otherAmerican wars combined. If fought todaywith our u.s. population approaching 300million people, we would be appalled at600,000 casualties. But this war was foughtat a time when the u.s. population—Northand South combined—was 30 million peo-ple, or just one-tenth its present size! If thesame war were fought today, it would takesix million casualties to affect a proportion-ate number of hearts and homes.

The Vietnam War—with its 50,000 casu-alties, spread out over 10 years—drovefrom office Lyndon Johnson (a “seasoned”former congressman, senator, majoritywhip, and vice president) under pressurethat he could not endure. By contrast,Lincoln had no prior federal governmentexperience, except for a two-year term inCongress 12 years before he became presi-dent; yet he had to deal with far greatercomplexities, far fewer resources, and farmore casualties than Johnson.

The bloodiest single day of the Civil Warwas the climax of the battle of Antietam,fought in Maryland in September 1862, inwhich more than 25,000 soldiers fell (Northand South combined, in about equal num-bers). With the country then one-tenth itspresent size, a comparable battle in our life-time would have 250,000 war dead in a

To understand Lincoln’s greatness, it isfirst necessary to visit the vast challengesthat confronted him as president. Byunderstanding the greatness of the lastfour years of his life, it is then possible towork backward and understand how thepractice of law served to form his charac-ter and intellect.

Between the time of his election as presi-dent and his taking the oath of office, ahandful of states had seceded from theUnion, and many more were poised to doso. The previous president, James Buchanan,in sympathy with the South and in anticipa-tion of secession, had allowed many federalforts and arsenals to fall into the hands ofsecessionists and had permitted the treasuryto be looted by them. Chief justice of theu.s. Supreme Court, Roger Taney, also wellknown for his Southern bias, had strenuous-ly used his office to influence the interpreta-tion of the Constitution to guaranteeslavery. The now infamous Dred Scott deci-sion, holding that blacks were not peoplebut merely property, was the SupremeCourt’s last word on the most divisiveissue of the day.

Most of the great military talent of thenation was composed of men of theSouth, including Robert E. Lee, a militarygenius said to be a talent worth the equiv-alent of 50,000 infantry soldiers. (The agedand retiring General Winifred Scott toldLincoln this in early 1861. Not untilUlysses S. Grant was appointed in early1864 would Lincoln have a commandinggeneral who was not afraid of Lee.)

On top of these problems, Lincoln hadto contend with unbelievably diverse opin-ions about how to deal with a civil war—and eventually about whether the war waseven worth the unfathomable cost inblood and treasure. The rainbow of hiscritics included “peace Democrats,” whofavored a restoration of the Union, withslavery guaranteed in all states and territo-ries; “conservative Republicans,” whowanted the Union preserved but slaveryundisturbed in the South; “liberalRepublicans,” who wanted slavery prohib-ited in all new territories and states butwere willing to have it gradually abolishedin the South; and, finally, “abolitionists,”who wanted slavery abolished in all statesand territories but were sometimes divid-

S m o l d e r i n g a n t i w a r

a n y t h i n g w i t n e s s e d

5Clark Memorandum

It is to this enormously gifted man thatI pay respect—not as a president but as thecountry lawyer he was before he becamepresident.

Lincoln’s legal career began September9, 1836, when at the age of 27 he waslicensed to practice in the courts of Illinois.In spite of having less than one year of for-mal education, he had realized the absoluteneed as a young adult to know grammar.Accordingly, he had assiduously studied agrammar primer book until he knew theaccepted rules. He had acquired some inter-est in the law as a youth while watching tri-als at the county courthouse, but he wouldwork as a rail-splitter, a store clerk, a sur-veyor, a postmaster, a volunteer soldier, anda state representative before he would actu-ally practice law.

In one of these ventures—the store—he and his partner failed miserably, partlybecause of poor management and partlybecause the community of New Salem,

single day! When finally in 1864 Lincolnturned command of all Northern armiesover to Ulysses S. Grant, battle casualtiesmounted at appalling rates—over 50,000Union casualties in the late spring and earlysummer of 1864, or what would be 500,000casualties today (more than all of the u.s.

casualties in World War II) if measured inproportion to our present population. Withsuch enormous costs, and as yet an uncer-tain outcome, came pressure upon Lincolnto do something—anything—to end the warand bring peace to what Carl Sandburgdescribed as a “wailing humanity.”

By August 1864 Lincoln was sodespised as to appear unelectable to a sec-ond term. Even Republicans who hadnominated him for a second term onlymonths before were now openly asking himto resign his candidacy and thus give way tosomeone who had a chance of being elected.Even formerly die-hard Unionists were nowcalling for peace, offering either to recog-

nize the South as an independent nation orallow a restoration of the Union with slav-ery guaranteed.

And yet Lincoln—with consummatepolitical skill and inspired judgment—somehow managed to hold the fragile andweary Union together and preserve anation. Had he failed, the map of the con-tinent upon which we live would be divid-ed not just between North and South, butEuropean interests likely also would haveintervened to claim continental soil. Eventhe South—born with an acknowledgmentthat any state could secede from a centralgovernment—would likely have furtherfractured. And, comparable to the UnitedStates coming to the aid of Europeandemocracies in World Wars I and II, eventhe face of the world map would likelyhave been dramatically altered. Little won-der that General Grant, on learning ofLincoln’s reelection, said that the news was“better than a battle won.”

e m b e r s f l a m e d i n t o a r o a r i n g , a n t i w a r m o v e m e n t , w h i c h d w a r f e d

i n o u r g e n e r a t i o n d u r i n g t h e V i e t n a m W a r .

6 Clark Memorandum

7Clark Memorandum

where they lived, was dying economically.The two men ended $1,100 in debt—a size-able sum for the time. When Lincoln’s part-ner died in 1835, Lincoln agreed to pay theentire debt alone, even though Illinois lawat that time may have absolved him of hispartner’s share of the debt.

To understand just how monumentalthat debt was, it is necessary to understandthe value of a dollar in 1835. The governorof Illinois earned $1,400 per year, and a nicehome could be bought for $1,100. Todaysome state governors might earn $140,000 ayear, and a comfortable home can bebought for $110,000. Though economistsmight point out many distinctions, in arough way the value of a dollar then was ahundred times what it is now. Lincoln’sdebt, therefore, would roughly equal$110,000 today.

It took Lincoln years to pay this debt—which he and his friends sometimesreferred to as his “national debt.” Since hedevoted his earnings to paying it before herewarded himself, it would be eight yearsafter he passed the bar before he wouldown a home. The act of paying the debt, incombination with many other similar actsof uncompromising integrity, earned himthe well-deserved nickname “Honest Abe.”

During the years Lincoln was payingthis debt, he confided to a friend: “I made ita point of honor and conscience in allthings, to stick to my word, especially ifothers had been induced to act on it.”8

The practice of law in Lincoln’s daywas quite different than it is today. Withno theaters or movies or other culturaloutlets in what was then considered thewestern United States, the courtrooms of

Illinois attracted townsfolk who attendedas a form of recreation. A great lawyer ofthat day carried an aura much like thesuper-athlete of today. The professionattracted some of the brightest and best,not only for the intellectual and economicrewards, but also for the sheer glamourand prestige of being a prominent actor inthe scenes of life. Courtrooms were excit-ing, even for spectators, and no doubt apublic hanging buzzed with spectatorspraising or lamenting the attorney’s skill—or lack of it—who had achieved—or failedto prevent—this death sentence.

Ward Lamon Hill, who was 18 yearsyounger than Lincoln but assisted him inmany cases, wrote:

My personal acquaintance with Mr. Lincolndates back to the autumn of 1847. In that year

. . . left my home in . . .Virginia, and settled atDanville, Vermillion County, Illinois. Thatcounty and Sagamon, including Springfield,the new capital of the State, were embraced inthe Eighth Judicial Circuit, which at thatearly day consisted of fourteen counties. It wasthen the custom of lawyers, like their brethrenof England, “to ride the circuit.” By that cir-cumstance the people came in contact with allthe lawyers in the circuit, and were enabled tonote their distinguishing traits. I soon learnedthat the man most celebrated, even in thosepioneer days, for oddity, originality, wit, abil-ity, and eloquence in that region of the Statewas Abraham Lincoln.9

Though Lincoln loved the practice oflaw and the powers of logic and reason ittested and required, he was also constantlyinvolved in politics. He frequently traveled

widely within Illinois and eventually eveninto other states, campaigning for presi-dential candidates and against the expan-sion of slavery into new territories. Exceptfor the years 1853 to early 1858, when hetells us he practiced law “more assiduous-ly” than at any time before, he alwaysmaintained a very busy political calendarwhile simultaneously practicing law.

Despite his relentless political involve-ment, his law practice was a thriving one. Inaddition to trying all manner of jury andbench trials in both law and equity, and reg-ularly riding the 400-mile circuit on horse-back or in a buggy, he still managed toargue 240 cases before the Illinois SupremeCourt. This is a daunting number of appel-late cases even for an attorney who prac-tices a lifetime, does only appellate work,and has no political commitments.

In a note written for a young man aspir-ing to have a thriving law practice, Lincolnrevealed how he was able to accomplish somuch:

The leading rule for the lawyer, as for theman, of every calling, is diligence. Leavenothing for tomorrow, which can be donetoday. Never let your correspondence fallbehind. Whatever piece of business you havein hand, before stopping, do all the labor per-taining to it which can then be done. Whenyou bring a common-law suit, if you have thefacts for doing so, write the declaration atonce. If a law point be involved, examine thebooks, and note the authority you rely on,upon the declaration itself, where you are sureto find it when wanted. The same of defensesand pleas. In business not likely to be liti-gated—ordinary collection cases, foreclosures,

o w e v e r , w h e n L i n c o l n ’ s p a r t n e r d i e d i n 1 8 3 5 , L i n c o l n a g r e e d t o

p a y t h e e n t i r e d e b t a l o n e , e v e n t h o u g h I l l i n o i s l a w a t t h a t t i m e

m a y h a v e a b s o l v e d h i m o f h i s p a r t n e r ’ s s h a r e o f t h e d e b t .

8 Clark Memorandum

partitions, and the like,—make all examina-tions of titles, and note them, and even draftorders and decrees in advance. This course hasa triple advantage; it avoids omissions andneglect, saves your labor, when once done;[and] performs the labor out of court whenyou have leisure, rather than in court, whenyou have not.10

In time Lincoln would handle some ofthe biggest cases of the day, including therights of counties to tax railroads, and thecompeting rights of railroads and river-boats. Yet his practice remained so diversethat he would also try a murder case (justmonths before becoming president).

His first law partner, John Logan, saidLincoln was not a wide reader of the lawbut that he would “work hard and learn allthere was in a case he had in hand” andthat he was “useful in getting the good willof juries” by putting himself “at once onan equality with everybody.”11 His thirdand last law partner, William Herndon,agrees that Lincoln was not a wide reader,Herndon claiming that no man “read lessand thought more” than Lincoln.

Isaac Arnold, who practiced in the samecourts as Lincoln, observed that Lincoln’sfees were “ridiculously small and that hiswants were few and simple.”12 Yet by sheervolume of work he earned between $2,000and $3,000 per year (between $200,000 and$300,000 in today’s currency).

Arnold says that a stranger’s first im-pression of Lincoln was that of a “kind,sincere and genuinely good man of perfecttruthfulness and integrity. He was one ofthose men whom everybody liked at firstsight.” 13

Ward Hill Lamon, Lincoln’s “local part-ner” in Danville and later in Bloomington,records that

whenever it was known that Lincoln was tomake a speech or argue a case, there was ageneral rush and a crowded house. It matteredlittle what subject he was discussing—Lincolnwas subject enough for the people. It wasLincoln they wanted to hear and see; and hisprogress round the circuit was marked by aconstantly recurring series of ovations.14

Lamon provides an example of Lincoln’swit by recalling an occasion when Lamon

ripped the seat of his trousers in awrestling match outside the courthouse.His short coat did not cover his resultingembarrassment. As he faced the jury—acheek exposed to the row of attorneysbehind him—some of the attorneys, qui-etly chuckling, started a “subscriptionpaper” to buy Lamon a new pair of pan-taloons, one of them noticing that he wasa “poor but worthy young man.” Thevarious attorneys in the courtroombehind Lamon added many humorouscomments, but Lincoln topped them allwhen he wrote, “I have nothing to con-tribute to the end in view.” 15

On another occasion Lincoln andLamon represented a conservator appointedto safeguard a fund of $10,000 ($1,000,000in present currency). A “designing adven-turer” (according to Lamon) sought toremove the conservator so that he mightget at the fund. A contested hearing hadbeen set and a protracted contest wasexpected. Anticipating a great fight,Lamon had charged a fixed fee of $250($25,000 today). Unexpectedly, the casewas tried in less than 20 minutes and tothe complete satisfaction of the client,who promptly and happily paid the fullfee. When Lincoln learned of the chargehe insisted that Lamon refund the clientat least one-half the fee. Lamon protest-ed that the fee had been fixed in advanceand that the client was perfectly satis-fied. “That may be,” replied Lincoln,“but I am not satisfied. This is positivelywrong. Go, call him back and returnhalf the money at least, or I will notreceive one cent of it for my share.”16

Another time Lamon observed thatLincoln had won a railroad case. As thejudge was about to announce the dollaramount of the judgment, Lincoln rose tosay that the opposing side “had notproved all that was justly due to them inoffset” and then added that justicerequired an offset against his client for acertain amount.17 Such acts no doubthelped confirm Lincoln’s reputation ofunfailing integrity.

Lincoln’s first two partnerships wererelatively brief (each being only a fewyears), but his last partnership, withWilliam Herndon, lasted 16 years andwas so amiable that Lincoln intended to

return to the practice of law withHerndon after he served as president.The firm of Lincoln and Herndon con-stantly grew in the volume and quality ofcases it handled. Herndon was himself acolorful character. He was a wide reader,having probably the largest privatelibrary in Springfield, and he was a chatter-box talker, enthusing about a vast arrayof subjects and theories. On occasionLincoln would relax on the sofa in thelaw office and ask Herndon for anupdate on his latest reading.

According to witnesses, neither Lincolnnor Herndon was a tidy office keeper. Oneclient even claimed to have seen seedssprouting in accumulated dust along theedges of the walls of their somewhat dilap-idated second-story office. According toHerndon, Lincoln was not highly orga-nized or systematic. As Herndon analyzedLincoln’s lack of system, Herndon beganto keep a binder wherein he noted the lat-est cases of importance to the practice. Hewould then feed Lincoln the most germanelegal opinions pertaining to Lincoln’sappellate work. The partnership workedlike magic, the younger Herndon adoring“Mr. Lincoln,” as he called him, andLincoln appreciating his young partner,whom he consistently referred to as“Billy.”

They equally divided their fees, and theaccounting was simple: when Lincoln col-lected a fee he would divide the moneyand put Herndon’s share in an envelope,writing “Herndon’s half” on the outside,and Herndon would do likewise. Neitherever had any occasion to suspect that anyfee was ever withheld from the other.

Almost every description I have read ofLincoln’s success as a lawyer includes acomment about his great ability to get tothe “nub” of a case and articulate it’s essen-tial justice in language everyone couldunderstand. He would readily give upminor points in order to give greateremphasis to essential points.

Herndon tells us that Lincoln’s mind wascontinually searching for the “first cause” ofthings. As an example, he says that afterLincoln returned from a trip east, where hehad seen Niagara Falls, he and Herndonwere conversing in the office regarding itsbeauty. Herndon writes:

9Clark Memorandum

I was endeavoring to entertain my partnerwith an account of my trip, and among otherthings described the Falls. In the attempt Iindulged in a good deal of imagery. As Iwarmed up with the subject my descriptivepowers expanded accordingly. The mad rushof water, the roar, the rapids, and the rainbowfurnished me with an abundance of materialsfor a stirring and impressive picture. The rec-ollection of the gigantic and awe-inspiringscene stimulated my exuberant powers to thehighest pitch. After well nigh exhaustingmyself in the effort I turned to Lincoln for hisopinion. “What,” I inquired, “made the deep-est impression on you when you stood in thepresence of the great natural Wonder?”

I shall never forget his answer, because itin a very characteristic way illustrates how helooked at everything. “The thing that struck

me most forcibly when I saw the Falls,” heresponded, “was where in the world did allthat water come from?”

He had no eye for the magnificence andgrandeur of the scene, for the rapids, the mist,the angry water, and the roar of thewhirlpool, but his mind, working in its accus-tomed channel, heedless of beauty or awe, fol-lowed irresistibly back to the first cause. It wasin this light he viewed every question.However great the verbal foliage that con-cealed the nakedness of a good idea, Lincolnstripped it all down till he could see the waybetween cause and effect. If there was anysecret in his power this surely was it.18

Although Lincoln’s fees were generallysmall (“the lawyers of the circuit often com-plained that his fees were not at all com-mensurate with the service rendered”19), he

H o w e v e r g r e a t t h e v e r b a l f o l i a g e

t h a t c o n c e a l e d t h e n a k e d n e s s o f a

g o o d i d e a , L i n c o l n s t r i p p e d i t

a l l d o w n t i l l h e c o u l d s e e t h e w a y

b e t w e e n c a u s e a n d e f f e c t .

10 Clark Memorandum

Washburne of Cincinnati, Ohio. McCormickwas represented by a Reverdy Johnson, oneof the most renowned attorneys in theUnited States. Lincoln looked forward to thecontest and the opportunity to go againstJohnson. Just before trial, and unknownbeforehand to Lincoln, his client also hiredEdwin M. Stanton (later secretary of war inthe Lincoln administration), a nationallyprominent attorney from Philadelphia.

Throughout the trial Stanton treatedLincoln rudely and with a great air of superi-ority. Through an open door Lincoln heardStanton inquire of another: “Where did thatlong-armed creature come from, and whatcan he expect to do in this case?”23 ThoughLincoln’s feelings were deeply hurt, he stayedwith the case but played only a minor role,

Stanton taking advantage of Lincoln’s gen-erosity in offering him a leading role. Lincolnwas also disappointed in the judge of the case:“If you were to point your finger at him, anda darning needle at the same time, he neverwould know which was the sharpest.”24

One of Lincoln’s last jury trials involvedDuff Armstrong, the son of HannahArmstrong, who had befriended Lincolnwhen he was penniless and unknown. Duffwas accused of murder, the state’s primarywitness claiming that he could see Duffcommit the act “by the light of the moon.”The high drama of the trial occurred whenLincoln produced an almanac showing thaton the night in question the moon had setthree minutes before midnight, so that itcould not have been “straight overhead” asthe witness claimed it was when the allegedmurder occurred. The witness was visiblyovercome by apparent uncertainty, and hisprolonged pause proclaimed volumes of rea-sonable doubt.

Lincoln produced most of what he wrotein longhand, even after becoming president.His writings are distinctively Lincoln, such

could, on occasion, charge a whopping fee.The best example was his work for theIllinois Central Railroad in a case common-ly known as the McLean County Tax Case.The issue was whether a county could taxthe railroad. The railroad maintained thatonly a state could levy such a tax. IfMcLean County won, other counties wouldsoon levy a similar tax. It was, according toLincoln’s pre-engagement letter, the largestcase then going in Illinois.20

Lincoln charged a retainer of $200.Again, using the general rule that the valueof a dollar was a hundred times then whatit is now, the $200 retainer would be theequivalent of $20,000 today. The case waslong and protracted, but Lincoln was ulti-mately successful in the case, saving the

railroad millions of dollars in taxes (hun-dreds of millions by today’s currency).Upon completion of the work, he billedthe railroad $2,000 ($200,000 today) minushis $200 retainer. The railroad gasped atthe fee: “This is as much as Daniel Websterhimself would have charged,” complainedrailroad management, refusing to pay thefee.

Stung by the rebuke, Lincoln inquiredof other attorneys whether or not theyfelt the fee was fair. The consensus wasthat he had charged too little for theincredibly valuable services he had per-formed. The somewhat miffed and nor-mally inexpensive Lincoln had hadenough and decided that under the cir-cumstances the railroad should pay $5,000($500,000 today). He presented an amend-ed bill and sued the railroad when itrefused to pay, calling upon six promi-nent attorneys as expert witnesses. Heobtained a judgment for the full amount,collected it, and—amazingly—continuedto represent the railroad in other mattersduring and after the litigation.

Herndon concluded his description ofthis affair by noting: “[M]uch as we depre-cated the avarice of great corporations, weboth thanked the Lord for letting theIllinois Central Railroad fall into ourhands.”21

Isaac N. Arnold, who often saw Lincolnin court, said:

Lincoln was, upon the whole, the strongest jurylawyer in the state. He had the ability to per-ceive with almost intuitive quickness the deci-sive point in the case. In the examination andcross-examination of a witness he had no equal.He could always make a jury laugh, and oftenweep, at his pleasure. His legal argumentsaddressed to the judges were always clear, vigor-ous, and logical, seeking to convince rather by

the application of principle than by the citationof cases. A stranger going into court when hewas trying a cause would, after a few moments,find himself on Lincoln’s side, and wishing himsuccess. He seemed to magnetize everyone. Hewas so straightforward, so direct, so candid, thatevery spectator was impressed with the idea thathe was seeking only truth and justice. Heexcelled in the statement of his case. Howevercomplicated, he would disentangle it, and pre-sent the real issue in so simple and clear a waythat all could understand. Indeed, his statementoften rendered argument unnecessary, and fre-quently the court would stop him and say: “Ifthat is the case, Brother Lincoln, we will hearthe other side.” His illustrations were oftenquaint and homely, but always apt and clear,and often decisive. He always met his oppo-nent’s case fairly and squarely, and never inten-tionally misstated law or evidence.22

As Lincoln’ reputation grew, so did thequality and magnitude of his cases, especiallyin federal court. In 1857 he was hired to defenda patent infringement suit brought byMcCormick Manufacturing against a Manny

H e w a s s o s t r a i g h t f o r w a r d , s o d i r e c t , s o c a n d i d , t h a t e v e r y s p e c t a t o r

was imp ressed w i t h t he i dea t ha t he was seek i ng on l y t r u th and j us t i c e .

11Clark Memorandum

that a paragraph written by him on a subjectnot familiar to the reader could neverthelessbe recognized by one familiar with the restof Lincoln’s writings. His genius was inuntangling and then expressing in simplelanguage—often in single syllables—the mostcomplex ideas imaginable. Isaac N. Arnoldnotes the following passage as representativeof the whole of Lincoln’s writings: “Let ushave faith that right makes might, and inthat faith let us to the end do our duty, aswe understand it.” Arnold notes that onlytwo words in the whole sentence have morethan one syllable.25

Not only is his language beautiful andcomprehensive, but his logic and reason-ing—honed no doubt by his years of prac-ticing law—are the admiration of anycareful student of his writings. What hewrote, however, was not always easily pro-duced. Lamon notes that it took Lincolnfive hours of “intense mental activity” tocompose the following paragraph:

It has been intimated to me that the gentlemenwho have acted as the legislature of Virginia insupport of the rebellion may now desire toassemble at Richmond and take measures towithdraw the Virginia troops and other supportfrom resistance to the general government. Ifthey attempt it, give them permission and pro-tection until, if at all, they attempt some actionhostile to the United States, in which case youwill notify them, give them reasonable time toleave, and at the end of which time arrest anywho remain. Allow Judge Campbell to see this,but do not make it public.

Lincoln weighed, balanced, and intense-ly thought through the likely effect as wellas endless other possible side effects ofeach word. At issue was a deep legal ques-tion that four bloody years of war had stillnot settled—whether the elected represen-tatives of a state in rebellion against thenational government had authority tolegally act for and on behalf of the state.Had Lincoln recognized the right of thelegislature to withdraw the Virginiatroops, he would also have admitted theirlegality to act in other matters, thus doom-ing an attempt to reconstruct governmentsin rebellious states. On the other hand,Southern troops would not recognize theauthority of any but the state legislature

that had acted during the war. Thinkingthrough all the possible consequences thatcould flow from the exact wording of themessage, Lincoln eventually referred to“the gentlemen who have acted as the leg-islature of Virginia,” later explaining—when his letter was in fact misconstrued ashe feared it would be—that he “did this onpurpose to exclude the assumption that Iwas recognizing them as a rightful body. Ihave dealt with them as men having powerde facto to do a specific thing.” 26 Would toGod that politicians of our day did asmuch thinking and had as much wisdom!

Lincoln had an uncanny memory for sto-ries and the good judgment and skill toweave a moral into them. He used stories, hesaid, as “labor saving devices.” He maintainedthat a good story can bring home a pointmore eloquently than pages of explanations.

On one occasion he told Lamon astory that Lamon found so humorousthat his laughter disrupted the courtroomand Judge David Davis fined him $5 forcontempt ($500 in today’s currency). Atthe next recess Lamon paid the fine but,still laughing, told the judge the story wasworth every cent, whereupon the judge,in spite of himself, asked Lamon to repeatthe story. Unfortunately the story itselfhas not survived, perhaps because itshumor lay largely in how Lincoln alonecould tell it.

In reading Sandburg’s biography, whichcontains hundreds upon hundreds ofLincoln’s stories in the context of the situ-ation Lincoln told them, I wondered howanyone could possibly remember so manyapt tales and know precisely when to usethem. Soon his stories became legendary,and many have been repeated by genera-tions of school children for more than ahundred years.

During the intensely satisfying quietmoments I have spent studying Lincoln’slife and words, I have been most impressedby his ability to think so clearly and writeso well. In an age where modern presidentshave speech writers, letter writers, andnote-takers and are fed canned briefs bysubordinates who have done the thinkingfor them, I am not surprised that ournation has not produced another Lincoln.He seemed to know that the struggle toclearly express an idea is an important part

of coming to correct conclusions. His pres-idential decisions proved dazzlingly deftand inspired. No doubt the experience ofhis prairie years as a country lawyer servedhim and his country well during the fouryears of our nation’s most intense struggleto define itself. The eternal wisdom of hisimmortal words would also help “bind upthe nation’s wounds” long after his death.

Notes

1. Carl Sandburg, Abraham Lincoln, the Prairie Years

and the War Years, One-Volume Edition, Harcourt

Brace & Company, Copyright 1954.

2. William H. Herndon and Jesse W. Weik,

Herndon’s Life of Lincoln, Da Capo Press, Inc.,

Copyright 1983.

3. Ward Hill Lamon, Recollections of Abraham

Lincoln 1847–1865, University of Nebraska Press,

Copyright 1994.

4. Isaac N. Arnold, The Life of Abraham Lincoln,

University of Nebraska Press, Copyright 1994.

5. Stephen B. Oates, With Malice Toward None: A Life

of Abraham Lincoln, Harper & Row, Copyright 1997.

6. David Herbert Donald, Lincoln, Simm &

Schuster, Copyright 1995.

7. Michael Shaara, The Killer Angels, David McKay

Company, Inc., Copyright 1974.

8. Abraham Lincoln: Speeches and Writings, 1832–

1858, The Library of America, 1989, at 38.

9. Lamon, p. 14.

10. Speeches and Writings 1832–1858, p. 298.

11. Quoted in Herndon, p. 210.

12. Arnold, p. 82

13. Arnold, p. 83

14. Lamon, p. 16

15. Lamon, p. 18

16. Lamon, p. 18

17. Lamon, p. 20

18. Herndon, p. 238–9.

19. Lamon, p. 17.

20. Speeches and Writings 1832–1858, p. 298.

21. Herndon, p. 284.

22. Arnold, p. 84.

23. Herndon, p. 287.

24. Herndon, p. 287.

25. Arnold, p. 343.

26. Lamon, p. 310.

Kelly L. Andersen ’79 (andersen@cdsnet.net) prac-

tices in Medford, Oregon, primarily handling plain-

tiff’s personal injury, product liability, and wrongful

death claims.

13Clark Memorandum

h u g hh e w i t t

I l l u s t r a t e d

b y p a u l

z w o l a k

am here to talk a l i t t le about rel ig ion and law today. I ’m real ly here not because I ’ma law professor, I think, so much as because I ’m a journalist who reports a lot in thearea of religion. spent a full year preparing a series for pbs called

Searching for God in America that involved inter-views with leaders of religious faith—leaders asdiverse as Elder Neal A. Maxwell, the Dalai Lama,Thomas Keating, a Benedictine monk, and ChuckColson. I ’ve interviewed Robert Funk of the JesusSeminar, author of The Five Gospels and a debunkerof Christ ’s divinity; Adin Steinsaltz , a rabbinicscholar of great tradition; Greg Laorie, a new evan-gelical force; and assorted New Agers. The CelestineProphecy, by James Redfield—a genuinely wretchedbook—sold 10 million copies, so I interviewed him.Marianne Williamson is another producer of worksthat cannot be considered good literature at all ,but they are somehow sel l ing more than anythingelse avai lable on the United States publ ishingscene. I l ike to talk with people about what theybel ieve and why they bel ieve i t . Today I ’m here asa bel iever ta lking with a community of bel ievers .

O E R N

a fir st amendmentpolemic

Now that’s the one thing I want you toremember. Years from now, when you can’tremember who I was or what I said, I willhave at least introduced you to the distinc-tion between a polemic and a philippic.

A polemic is an aggressive attack, anargument with someone, and my aggres-sive attack, my argument, is with JusticeScalia.

A philippic is also an aggressiveattack, but it is a bitter one, drawn fromDemosthenes’ verbal attacks on Philip IIof Macedon when Philip was attemptingto take over Greece. Demosthenes wasangry and bitter.

I’m not bitter about what I’ve seen theUnited States Supreme Court do inrecent years regarding First Amendmentprotections, but I am concerned. And somy polemic, my aggressive attack, isaimed at persuading you to agree withwhat I say. But I’m not making a bitterargument. I think Justice Scalia remains aman of great wisdom, conviviality, andlearning, but I do not understand what hehas done to the free-exercise clause of theFirst Amendment.

the fr ee-e x erciseclause

Many of you have probably already stud-ied this. If you haven’t, I’m going to giveyou a brief layman’s approach to what hashappened in the last seven years to theFirst Amendment and to the free-exerciseclause. The clause says, “Congress shall

am an elder in the Presbyterian Church of the United States, and Ithink matters of faith and their intersection with law produce the mostinteresting debates . But I don’t come as an expert . I ’m not a MikeMcConnell , one of the country’s leading First Amendment scholars . I ’msure you have similar experts on your faculty as well . I am rather thatmost dangerous of lecturers, the aggressive amateur. I ’m going to deliv-er a polemic but not a phil ippic .

i belie v e that the

administr ativ e stat e, as it grow s,

has become incr easingly

hostile to belief . . .

because the people who populat e the

administr ativ e stat e ar e largely hostile

to belief.

14 Clark Memorandum

15Clark Memorandum

make no law respecting an establishmentof religion, or prohibiting the free exercisethereof.” What does this mean? Well, theCourt has been struggling with the ques-tion for many years.

Before 1990 the Court had reached away station of stability. And the rule hadevolved that the government could not,without a compelling reason, substantial-ly burden the practice of someone’s reli-gious belief, even if it didn’t intend to.This is to say that if the government weredriving down the street, so to speak, notminding its own business too carefully,and accidentally ran over a religiousbelief, the government would have to goback and correct its action.

t h e S M I T H decision

Then came the case of EmploymentDivision v. Smith. Alfred Smith and Gay-lan Black were drug rehabilitation coun-selors. However, they were also membersof the Native American Church and, aspart of the rituals of that church, theyingested peyote. Rehabilitation centerofficials found this practice inconsistentwith continued employment—not a sur-prising decision on their part—and firedSmith and Black.

The two plaintiffs applied for unemploy-ment benefits from the State of Oregon, butthey were denied. In common practice, ifyou are discharged for cause, you’re notentitled to unemployment insurance. It hadlong been the rule of the Supreme Courtthat if you were discharged for cause thatwas part of your religious practice, even if itdid not allow you to participate in theorderly conduct of the work, then thatcause could not be used to deny you unem-ployment benefits. For example, if you werea Seventh-day Adventist and your workcompelled you to work on Saturday and asa result you quit or were fired because yourefused to, then you could not be deniedyour unemployment benefits.

In 1990 Justice Scalia—in an opinionstrongly supported by his colleagues onthe bench—repealed the effects test andembraced a much more sweeping test,one more adverse to religious belief: If alaw is neutrally conceived and neutrallyapplied, no matter what its effects are on

religious belief, it will be upheld againstthe charge that it is interfering with theexercise of religion. Justice Scalia wrotethat any society adopting such a systemas an effects test is courting anarchy. Andthe danger, in his opinion, increases indirect proportion to the society’s diversi-ty of religious beliefs. In other words wecan’t possibly accommodate the free exer-cise of all the religions that we have in theUnited States, and as a result we’re justgoing to have to stop proceeding on acase-by-case, effects-test basis.

the law : a godsend

The reaction to this was swift. By 1993 acoalition for the free exercise of religion,larger than any previous political coali-tion organized on a matter of religiousbelief, had sprung into being, and it wasso powerful that by near-unanimous votesthe House and the Senate passed andPresident Clinton signed into law theReligious Freedom Restoration Act of1993 (rfra). It is a small act, which is itselfremarkable, but it said simply that it wasabout restoring the prior test, prior toSmith, and I quote:

Government shall not substantially burdenthe person’s exercise of religion, even if thatburden results from a rule of general applica-bility unless the government demonstratesthat the application of a burden to the person(1) is in furtherance of a “compelling govern-mental interest” and (2) is the least restrictivemeans of furthering that interest.

So the Congress attempted to send thelaw back to where it had been; rfra was arejection of the Smith approach, a rejec-tion of the idea that here neutrality wins.Ninety-five cases quickly followed. rfrawas a powerful tool for people like me,who are occasionally in a pro bono orsome other setting representing an interestof a church. I’ve made that a hobby ofmine because I believe that the administra-tive state, as it grows, has become increas-ingly hostile to belief. It is aggressivelyhostile to belief because the people whopopulate the administrative state are large-ly hostile to belief. Therefore, individualslike me, who are believer-lawyers, must be

16 Clark Memorandum

willing to defend the church against bur-dens placed upon it.

rfra was a godsend. It allowed me towalk into any city council meeting armedwith a clear statute. And that’s where I nor-mally find the intersection of church/stateproblems: land use and churches—and citycouncils that don’t care about the architec-ture of worship.

One such case, not one of mine,involved a small Roman Catholic church inthe city of Boerne, Texas (City of Boerne v.Flores). The church had been there formany years and could only hold 230 wor-shipers. About 40 to 60 people were turnedaway from each mass. The city councildenied the congregation permission to teardown the old church and expand, arguingthat the church could simply add a fewmore masses, bring in another priest, or dowhatever was necessary.

Acting through its archbishop, theRoman Catholic Church said, “No, wehave a right to tear down our church. Wehave a right to build our new church. Thearchitecture of worship matters.” To methis is a truism. Evidently it is not forpeople who are not believers.

I don’t believe you can simply turnover the architecture of worship to a his-toric landmark commission and declare,as the city of Boerne did, “What youdecide about a church is the last word.”The suit proceeded, and the church wonunder rfra because it is a burden on achurch to prevent its expansion.

a setback

Just this past summer, however, the courtstruck down in this case the ReligiousFreedom Restoration Act—and not by aclose margin. J. Brent Walker, generalcounsel of the Baptist Joint Committeefor the Commission on Public Affairs,wrote recently for a symposium I editedon Boerne, and said, “Only a handful ofpeople thought rfra was poor policy orthought it was unconstitutional. That isthe good news. The bad news is thatseven of them sit on the United StatesSupreme Court” (2 Nexus 2, Fall 1997).

Two levels of argument exist in Boerne.One that I will not discuss is the extentto which the 14th Amendment allows

enabling legislation to be passed. That’s adifferent area of constitutional law. Theother level is the discussion about the 1990Smith case. Today’s talk is all about Smith.It’s about the role of religion in the UnitedStates. It’s about the role of religious beliefand how much deference ought to be paidto that. It’s about what the Framersthought about the Constitution.

If you read these opinions, you’ll seetwo great friends—Justice O’Connor andJustice Scalia—screaming at each otherthrough the footnotes over who knows theoriginal intent of the Constitution better.They can marshal their experts on one sideor the other. I could walk you throughwhat they say, but I couldn’t give you a dis-positive answer. However, I think that ifyou put the proposition to the Framersthat church architecture should be decidedby those who are not members of thechurch, the Framers would find the idea tobe a bracing assertion and one that was notpart of their tradition.

Four questions come out of Boerne.The first is a trio of technical problems.What do we do with rfra now? Does itstill apply to federal law? Should we passmany rfras around the nation?

The second is, Are churches really vul-nerable? And for those of you who areMormons, you might ask, Is the Mormonchurch vulnerable because of Boerne?

The third question is, What was JusticeScalia, this hero of the conservatives,thinking about? Can we carefully examinehis opinion and ask, What was this verybrilliant justice trying to accomplish?

And, finally: What are people of faithto do as a result of this?

t echnical matt er s

As to the technical problems, I will onlysay cases are presently being litigatedover whether rfra still applies to federallaw. There’s a good argument that it does.If it does, then what about a church Ionce represented that could not build onland it had long held because the endan-gered California gnatcatcher was foundon the property? This case will be anargument about whether that church cango forward under the old rfra. In everystate of the union where the coalition

continues to organize, an effort exists tohave states pass their own rfras because,as you know, states can protect rights toa greater degree than the feds can if theychoose to do so. Free exercise mightmean a lot more to the legislature ofCalifornia than it did to the SupremeCourt majority of seven. And so thedebate over many rfras is going onaround the country. It’s kind of a travel-ing road show. Marci Hamilton, a profes-sor at Benjamin Cardoza Law School inNew York, testifies, “What a horriblething; you can’t do this. It violates theestablishment clause—bad, bad, bad.”And then a whole bunch of other peopleshow up that say, “No we need this; ourchurch is being imposed upon.”

churches ar e vulner able

Are churches vulnerable? This is wherethe experience of practice informs myprofessorial and my journalistic approach.If you only knew what went on regard-ing churches in planning commissionsacross the United States. If any of youhave had personal experience of whatthe culture of disbelief now does tobelievers who attempt to organize andpractice their faith, you understand thatchurches are not only vulnerable, theyare very vulnerable.

I will give you a couple of examples. In my own Presbyterian church, where

we recently built a sanctuary, the buildinginspector arrived and said, “You have a lit-tle step-up (actually two step-ups), and sowe want handrails onto the platform whereworship is conducted.” Of course, no onegoes up there except the pastor. That’swhere he preaches. So we engaged in anultimately successful eight-week rigmarolethat exhausted us and took much effort. Wehad to organize and use up political capitaland approach the city council to get therequirement of handrails removed fromruining our architecture of worship.

You might say, “Well, that’s not reallya big deal is it, Hugh? That’s somethingthat you ought not to have to be able tocite rfra for.” But I would ask you: “If ahandrail can be required, why not then aveil? If a veil can be required, why not a

17Clark Memorandum

Ther e is a gr eat

desir e for r ational, smart,

e v en some what schooled

people to e xplain wh y their faith,

which the y intuitiv ely know through r e v elation to be true,

is also

consist ent with the natur al or der that w e can see

and discov er through the

scientific process.

18 Clark Memorandum

wall? And if a wall, why not then regulatethe entire architecture of worship?”

Anyone connected with church workthroughout the United States will tellyou that the current u.s. administrativestate—the regulatory apparatus, be itenvironmental, be it land use, be it anyof a thousand faces that state, local, andfederal governments show—is hostile tobelief.

Professor Phillip Johnson, a well-known evangelical Christian from theUniversity of California, Berkeley, LawSchool and a prolific author and a consti-tutional scholar of no small note, believesthat the court and elite opinion (especial-ly within the administrative state) have “along-term program of making constitu-tional law congruent with agnostic liberalrationalism” (2 Nexus 2, Fall 1997).

I agree with that. There is an activehostility to belief in the United States cul-ture of elite opinion right now. Johnsonalso quotes approvingly from psychologistPeter Berger: “If India is the most reli-gious country in the world and Sweden isthe least religious, then the United Statesof America is a country of Indians whoare ruled by Swedes” (Id.).

The trend is ominous because theantibelief mind-set, the culture of disbe-lief, comes at a time and in a culture ofmockery where, if you are a person offaith and you take that faith into thesecular world, you will not only be metby argument but more often than notyou’ll be met by mockery. “It IsIrrational to Believe” is the u.s. culturalcontext I’m talking about. The ability todestroy belief without really ever engag-ing with it is so dominant that churchesare being stripped of the one constitu-tional protection that was originallytheirs. At least the free-exercise clausehad occasionally slowed down the statein its collision with organized faith,until Smith came along with its hostilityto faith and the Supreme Courtdestroyed the one protection that wasthere, the effects test. Then it struckdown rfra. In other words, it’s rainingvery hard, and the government is busytaking down the levies. That’s what theSupreme Court did. That’s why I arguewith Scalia.

what was scalia thinking?

What was Justice Scalia thinking aboutin the Smith decision? He said in effectthat any society adopting such a system,an effects test, is courting anarchy, andthe danger increases in direct proportionto the society’s diversity of religiousbeliefs.

Clearly we do have a lot of fringe faithin the United States. Remember Heaven’sGate? Folks who depart from their SanDiego mansion to join comet Hale-Boppare not by any means orthodox.

You have the Koresh disaster andtragedy in Waco, Texas.

You have the Jim Jones People’s Temple. I can find you fringe cults in any u.s.

city that will scare you and everyone elseconcerned about fringe cults. There aremany, and those concerns are well based,theologically. We have to worry aboutthem.

Nevertheless, are they more danger-ous than the resulting loss of freedom?Was Scalia really concerned about oursafety? Whereas there will occasionallybe headline-grabbing disasters like thoseI’ve just named, it’s not really an issuethat drives most people through theirdaily lives.

Perhaps he may have been suggestinga kind of Darwinian approach to orga-nized religion: truth will win out, andgenuine faith will prosper. Therefore, aneffects test will only protect that whichought not to be protected. If there istranscendental truth and it can be dis-covered, then genuine faith will find itsway out.

This is not, however, what I think hewas saying. His argument is only “Wecan’t afford to do this.”

Is he thinking of a test that he reallycan’t put forward (because it would beconsidered so absurd in political and legalcircles), which is that this is an over-whelmingly Judeo-Christian nation, and,as a result, the free-exercise clause pro-tects the free exercise of Christianity andJudaism? If you go back to Washington’sletter to the Newport congregation, how-ever, the concept would be includedamong the founding documents.

If you proffer that argument intoday’s America, the pc police will lynchyou before you get home. You cannotmake that argument anymore.

I think Justice Scalia ought to havesupported an effects test that leans towardtraditional religion. That’s how I want toconclude today, by talking about whatought to be the response of people of faithto this opinion and to this turn of events.

can w e cor r ect the situation?

I have recently finished a book called TheEmbarrassed Believer: Reviving ChristianWitness in the Age of Unbelief, and it’s abouttrying to correct the last 45 years of culturalattack on religious faith in the UnitedStates. This attack is now triumphant, andoutside the religious ghetto, outside what Icall the parallel universe of believers, youcan find very few instances showing thatthe United States is generally a people ofgreat faith. Yet every week 100 millionAmericans will go to their church, theirtemple, their synagogue, their mosque,whatever—100 million!

In spite of this fact, if you look deeplyat modern American culture, you will findthat this faith is not reflected there at all.There is a mocking aspect toward thosewho believe, manifest in high culture bythe opinion elite, that is pervasive. Howdid we get there?

Proposition One has been a problemsince the Enlightenment. Those whobelieve that rationality simply cannot bereconciled with religious conviction havetriumphed in many ways. They’re win-ning the field. My book The EmbarrassedBeliever plays off that of another book,this one from the early ’50s: The TrueBeliever by Eric Hoffer, a longshoremanturned charming philosopher-rogue.

Hoffer wrote from the rationalist per-spective. He’s a great intellectual and a finewriter who had a powerful effect on theculture of the ’50s, which has carried for-ward. Hoffer said, “Don’t believe in any-thing. It’s all a fraud. The genuine personof integrity is not part of a project thatinvolves many people.” This posture has aprofound attraction to those who want tobe unique and have a great deal of praise

19Clark Memorandum

from the community. It is particularlyattractive to journalists. The media lovespracticing the oppositional theory againstthe true believer.

Pick up a copy of the True Believer,and you’ll be astonished. You will seeChristianity being equated with commu-nism and fascism. Hoffer’s argument issubtle and well developed, but it’s there.His argument that all beliefs are alike—religious belief, political belief, ideologi-cal belief—and that all leaders arealike—Stalin, Hitler, Christ, the Pope—made it easy for the mass media (whichwas just coming of age in the UnitedStates then) to adopt a hostility towardbelief. It is a hostility that now infectsthe courts and infects decision makersvis-à-vis religious practice. So what arewe supposed to do in this culture? If youcarry your faith out of your law schooland into any kind of work setting, youwill be sanctioned, or you will be findingyourself marginalized. What is a believerto do when we have this constitutionalnew structure that says “no intent toharm, no protection?”

a r etur n to apologetics

First, it’s my belief that our importantproject for early next millennium isapologetics. People of faith who haveintellect have to make belief respectableagain in the culture at large. Because peo-ple of faith have abandoned the publicsquare and have generally not engaged inthe apologetic project, it allows a groupof the faithless—largely drawn to politicsbecause they need meaning and signifi-cance in their lives—to take an “Oh, reli-gion; it’s like the Rotary; and the Rotary’slike a school; and it’s like . . .” They’lllump together the variety of clubs in thecategory of communities. They’ll treatany religion as just another club, becausethe apologetic project has completelyfailed.

Nonbelievers think we’re all nutsbecause we really take this stuff seriously,that it’s some kind of imbalance in ourchemistry. We haven’t helped them under-stand that we believe it because it’s ratio-nal—something that is defensible.

Much of this has to do with the defeatof fundamentalism in the Scopes trial,where the appeal to naked prejudice andthe appeal not to reason but to orthodoxylost a lot of attraction for intellectual lead-ers. As a result, in academia around thecountry today you will find very fewbelievers outside a sectarian enterprise likebyu, Notre Dame, and the like (at leastvery few who are public about it, fearingas they do the swift and certain punish-ment within an academic atmosphere).

So how do we get back to apologetics?I interviewed lds Elder A. Neal Maxwelllast year for Searching for God in America.He’s an apologist. He’s attempting tomake rational the beliefs of lds people foran unchurched pbs audience. There is agreat desire for rational, smart, even some-what schooled people to explain whytheir faith, which they intuitively knowthrough revelation to be true, is also con-sistent with the natural order that we cansee and discover through the scientificprocess. We need to address this desire.

As more of that occurs, and it needs tooccur in a huge volume, this adverse cul-ture can at least be neutralized if notturned. In a neutral culture a historiclandmark commission will know howimportant it is that the church be allowedto organize its masses according to aschedule and in a sanctuary it designed.They would know that, for example, anew Mormon stake center must be con-trolled for theological reasons by thechurch, not by local land-use authorities.By changing the culture, then, you canneutralize the Smith decision.

defending tr adition

Second, I think it’s very important todefend the historic tradition of America—and this may be a hidden motive ofJustice Scalia. I know that you’re not sup-posed to say on the air—though I occa-sionally say it—“It’s a Christian country,folks. That’s what is was originally. That’swhat it remains predominantly.” We’vegot to be able to name that which is tradi-tional and revered in the United States inorder to protect it—and to do so withoutfear of being thought intolerant. It iscommon sense that the traditions of the

United States, when it comes to religion,are Judeo-Christian traditions.

Now, finally, I don’t know if the courtcan adopt a traditions test. I’m not advo-cating that. It would require a great dealof courage to define free exercise as mean-ing something other than free exercise forall, anytime, for anything that calls itselfreligion—because if Justice Scalia is cor-rect, u.s. prisons would have to permitanimal sacrifice. This is a caricature of theargument, but it’s true to a certain extent.If you allow everyone to practice theirreligion free of substantial burden, andanimal sacrifice is part of that ritual (as ithas been in the Caribbean-based religionsnow prevalent in Texas and Florida), andprisoners feel the need to practice theirreligion within prison systems, then,Justice Scalia’s argument runs, “Slipperyslope—you’re going to have animal sacri-fice in the prisons. Since we can’t go there,we have to have a neutral law test.”

I don’t think we have to go there. Ifyou use some common sense about thetraditions on which free exercise is hung,you’ll be okay. Those are Old or NewTestament traditions.

political dir ectness

Let me close with the last argument: poli-tics, and the extent to which there oughtto be religious politics in the UnitedStates. This is a divisive issue—somethingI struggle with because there is a greatdanger in politicizing faith and in sayingthat “my faith made me do it.” Still, itseems to me that, at least for the shortterm, people of faith have to becomemore active in asserting the primacy offaith in u.s. politics. And that means ask-ing not just the president but especiallylocal officials what their views on beliefare—not what they believe but what theirviews are on the centrality of belief.

Does religious freedom have a future?Yes! But only to the extent that those whobelieve in it pursue it vigorously.

Hugh Hewitt is a journalist, lawyer, and law professor

from Irvine, California. This article was adapted from

a speech given at the J. Reuben Clark Law School on

February 5, 1998.

21Clark Memorandum

The Religious Liberty Protection Act of 1998

am privileged to appear before you to testify in support ofCongressional enactment of s. 2148, the Religious LibertyProtection Act of 1998. I am here as a representative of TheChurch of Jesus Christ of Latter-day Saints to present the offi-cial position of that church. · As the Chairman has noted inthat biographical summary, I speak from considerable experi-ence with the law of church and state. · hist ory ·The history of The Church of Jesus Christ of Latter-day Saints(sometimes called Mormon or lds) illustrates why governmentshould have a compelling interest before it can pass valid laws tointerfere with the free exercise of religion. No other major reli-gious group in America has endured anything comparable to theofficially sanctioned persecution imposed upon members of mychurch in the 19th century by federal, state, and local govern-ments. Mormons were driven from state to state, sometimes bydirect government action, and finally expelled from the existing

s t a t e m e n t b e f o r e t h e s e n a t e c o m m i t t e e

o n t h e j u d i c i a r y

(s. 2148)

Mr. Chairman

e l d e r d a l l i n h . o a k s | i l l u s t r a t e d b y p a u l z o w l a k

June 23, 1998 | Introduction by Senator Orrin G. Hatch

Our first witness will be Elder Dallin H. Oaks. Since 1984 Elder Oaks has been a member of the Quorum ofthe Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. In addition to his church service,Elder Oaks had an extensive legal career. He served as a law clerk to Chief Justice Earl Warren, practicedlaw with the Chicago firm of Kirkland and Ellis, was a law professor at the University of Chicago, was exec-utive director of the American Bar Foundation, and served as an associate justice on the Utah SupremeCourt. He also served for nine years as president of Brigham Young University, the nation’s largest privateuniversity. He is the author of nine books and over one hundred articles on the subjects of religion and law.

tional, you and many of your colleagueshave worked hard to develop alternativelegislation, using Congress’ well-testedcommerce and spending clause authoritiesto reinstate the “compelling governmentalinterest” test throughout the nation. Weapplaud this approach. The ReligiousLiberty Protection Act of 1998 is a verysophisticated piece of legislation. Westrongly endorse its enactment.

conclusion

The Bill of Rights protects principles, notconstituencies. The worshipers who needits protection are the beleaguered minori-ties, not the influential constituent ele-ments of the majority. As a Latter-daySaint, I have a feeling for that reality.Although my church is now among the fivelargest churches in America, we were oncean obscure and unpopular group whosemembers, including many of my ownancestors, repeatedly fell victim to official-ly sanctioned persecution because of theirreligious beliefs and practices. We have spe-cial reason to call for Congress and thecourts to reaffirm the principle that reli-gious freedom must not be infringed unlessclearly required by a “compelling govern-mental interest.”

It is nothing short of outrageous thatthe Supreme Court currently extendsextraordinary constitutional protection towords that cannot be found within theConstitution, such as the “right to privacy,”while abandoning the vital “compellinggovernmental interest” requirement that isneeded to ensure the effectiveness of theexpress Bill of Rights language guaranteeingthe free exercise of religion. The fact thatthe Constitution has two express provisionson religions suggests that religious freedomwas meant to have a preferred position, butthe Supreme Court’s Smith decision hasnow consigned it to an inferior one.

Religious organizations and religiousworship and practices have been forced outof their constitutional sanctuary and intothe public square, to be treated like everyother organization and activity withoutunique constitutional guarantees. We appealto Congress to use its legislative power torestore religion to its rightful sanctuary.

Thank you, Mr. Chairman.

22 Clark Memorandum

borders of the United States, only to bepersecuted anew when those bordersexpanded to include the territory of Utah.

This is not academic history to me. Mythird great-grandmother, Catherine RichardOaks, lost most of her possessions when aMissouri state militia drove the Mormonsout of that state in 1838. Seven years later,when state authorities stood by while alawless element evicted the Mormons fromIllinois, she lost her life from exposure onthe plains of Iowa. My wife’s second great-grandparents, Cyril and Sally Call, hid in acornfield as a mob burned their home inIllinois. My great-grandfather, CharlesHarris, was sent to prison in the UtahTerritory in 1893 for his practice of pluralmarriage. His oldest daughter, my greataunt, Belle Harris, was the first woman tobe imprisoned during federal prosecutionof Mormons in the 1880s.

the “compelling gov er nmental int er est” t est must be r est or ed

The conflict between religious-based con-duct and government regulation of reli-gious practices remains today. The freeexercise of religion, enshrined in ourConstitution, is in jeopardy and cries outfor protection. There is nothing moresacred than a devout person’s worship ofGod—nothing more precious than thatperson’s practice of his or her religion.

With the abandonment of the “com-pelling governmental interest” test in thecase of Employment Division v. Smith, theSupreme Court has permitted any level ofgovernment to enact laws that interferewith an individual’s religious worship orpractice so long as those laws are of gen-eral applicability, not overtly targeting aspecific religion. This greatly increased lat-itude to restrict the free exercise of reli-gion must be curtailed by restoring the“compelling governmental interest” test.

r eligious bur dens under SMITH

The testimony of other witnesses willshow that in the half decade since theSmith case numerous religious practices

have already fallen victim to the increasedgovernment power it unleashed.

In addition, I wish to put into therecord of this Committee the entire testi-mony given at a recent hearing of theHouse Judiciary Subcommittee on theConstitution by Professor W. Cole Durhamof Brigham Young University. His testimo-ny provides compelling evidence that theSmith test is burdening religious freedomsin many areas.

For example, he reported a land-usestudy he conducted with attorneys of theprestigious Chicago law firm of Mayer,Brown & Platt. This study examinedreported cases involving free-exercise chal-lenges to land-use regulation. It startedfrom the basic proposition that if land-uselaws and decisions are really being gener-ally and neutrally applied, land-use deci-sions and policies should impact allreligions (and other land-use applicants aswell) in a consistent way.

The joint study not only failed to findconsistency in the application of land-uselaws to different religious associations; itfound a huge disparity.

Professor Durham testified: “Minorityreligions representing less than 9 percentof the population were involved in over 49percent of the cases regarding the right tolocate religious buildings at a particularsite.” Thus, the proportion of land-usechallenges to minority religions disclosedin this study is more than five times thenumber we would expect if minority reli-gions experienced such challenges in thesame proportion as their proportion ofthe total population.

Professor Durham testified: “There may,of course, be other factors that explainsome of the disparity, but the differencesare so staggering that it is virtually impossi-ble to imagine that religious discriminationis not playing a significant role.”

the r eligious liberty pro t ection act of 1998

Mr. Chairman, when I last testified beforea Congressional Committee, it was to sup-port enactment of the Religious FreedomRestoration Act (rfra). Now that theSupreme Court has held rfra unconstitu-

Elder Dallin H. Oaks’ recent testimonysupporting the Religious Liberty ProtectionAct of 1998 (rlpa) is part of the latest effortsto legislatively compensate for reduced judi-cial protection of religious liberty afterEmployment Division v. Smith (494 u.s. 872[1990]). Then, the u.s. Supreme Court jetti-soned its insistence that incursions on reli-gious liberty be justified by a compellingstate interest. Congress sought to remedythe resulting gap by passing the ReligiousFreedom Restoration Act (rfra), but inJune 1997 the Court struck that legisla-tion down in City of Boerne v. Flores (117S. Ct. 2157 [1997]) holding that Congresslacked power under Section 5 of the 14thAmendment to pass it.

Senators Orrin Hatch and TedKennedy jointly introduced rlpa in theSenate, and many lds senators and repre-sentatives have signed on as cosponsors ofthe Senate and House versions (Senate BillS. 2148; House Bill H.R. 4019). Elder Oaks’testimony is the most prominent lds con-tribution to the broad-based effort forrlpa, but many other Church membershave played a significant role.

A month after the Boerne decision,Elder Lance B. Wickman, general counselfor the Church, obtained First Presidencyapproval to convene an ad hoc ReligiousFreedom Advisory Committee. In additionto Elder Wickman, this group includedBoyd J. Black (’78), associate general counselfor the Church; Marcus G. Faust (’77), andVon G. Keetch (’87), who have served as theChurch’s representatives to the Coalitionfor the Free Exercise of Religion; byu LawSchool professors Frederick Mark Gedicks,Richard G. Wilkins (’79), and myself; andthree other Church members with relevantconstitutional expertise: Timothy Flanigan,Gene C. Schaerr, and Alexander Dushku(’93). With the benefit of advice from thisgroup, recommendations for an ldsresponse were developed. The advisorycommittee considered how best to continue

cooperating with the Coalition for the FreeExercise of Religion, a broad-based organi-zation with representation across the entirepolitical and religious spectrum that playeda key role in rfra’s adoption and defenseand then sprang into action again whenBoerne was decided. (The lds Church hasbeen an active member of the coalitionsince its creation.) Over the next severalmonths, Von Keetch and Marcus Faustworked with the coalition on formulatingconcrete legislative recommendations.

The coalition has chosen to pursue leg-islative remedies rather than a constitu-tional amendment because of the difficultyand delay involved. It has taken the posi-tion, yet to be tested before the SupremeCourt, that Boerne only invalidated rfrainsofar as it relates to state actions infring-ing on religious freedom, and that rfraremains valid in federal contexts. TheBoerne decision makes it difficult toachieve an across-the-board remedy withthe strength, simplicity, and elegance ofrfra. Instead, what has emerged is a morepiecemeal approach that seeks to invokeacknowledged bases for Congressionalpower, such as the commerce and spend-ing powers, to the extent possible.

The first initiative along these lines isthe Religious Liberty and CharitableDonation Protection Act of 1998, signedinto law on June 19, 1998 (Pub. L. No. 105-183, 112 Stat. 517 [1998]). Essentially, thislegislation is aimed at preventing normalcontributions to religious or charitableentities from being treated as fraudulentconveyances under bankruptcy law.Because this law deals with bankruptcy, afield in which Congress clearly has powerto regulate, there can be no doubt aboutcongressional authority in this area.

rlpa, the subject of Elder Oaks’ testi-mony, is more general legislation providingthat, in areas where Congress’ spending orcommerce power applies, state action canburden religious exercise only if it can meet

the compelling state interest/least restric-tive alternative test. In addition, rlpa con-tains special provisions that address thefield of land-use regulation. These provi-sions are also based on spending and com-merce power, to the extent those apply, butin addition, they are based on congression-al power under Section 5 of the 14thAmendment. Boerne left open the possibili-ty that Section 5 can be used as a basis forlegislation aimed at remedying free-exercise-rights violations. If adopted, this provisionwill help ameliorate the recurrent problemfaced by many smaller and less popularfaiths when they attempt to acquire anddevelop sites for religious purposes. rlpaalso amends rfra to limit its applicability tofederal settings and addresses other moretechnical issues, such as attorneys’ fees.

lds scholarship has been particularlysignificant in showing both the need andthe justification for rlpa’s land-use provi-sions. The amicus brief submitted onbehalf of the lds Church in Boerne (coau-thored by myself, Fred Gedicks, RichardWilkins, Von Keetch, Alexander Dushku,and several distinguished church-statelawyers at Mayer, Brown & Platt inChicago) included an appendix thatshowed a substantial pattern of discrimi-nation against smaller and less popularchurches in the land-use context. Thisstudy has been cited by Von Keetch in histestimony in support of the House ver-sion of rlpa on March 26, 1998; it wasexpanded upon in my own testimonybefore Congress on June 16, 1998; and itwas again referred to in Elder Oaks’ testi-mony. The study has turned out to beparticularly important because it providescrucial evidentiary support that there is apervasive pattern of religious discrimina-tion in land use. This finding, in turn,warrants congressional exercise of powerunder Section 5 of the 14th Amendmentto remedy the violation of religious free-dom principles, even after Boerne.

23Clark Memorandum

r e l i g i o u s f r e e d o m a n dt h e l d s l a w c o m m u n i t y

by W. Cole Durham, Jr.

W A S A T C H ?o n t h eWE I M A R

M o r m o n P o l i t i c a l A l i e n a t i o n a n d t h e S e a r c h f o r P o w e r

T i m o t h y E . F l a n i g a n

P h o t o g r a p h y b yJ a y n e H i n d s B i d a u t

The first story is that of the WeimarRepublic. “Weimar” is the story of the riseand fall of an experiment in democracy inGermany following the end of the GreatWar. In late September 1918 the Germangeneral staff concluded that the front,which had remained remarkably staticthroughout most of the war, could bepierced at any moment by the Allies.They demanded of their government animmediate cessation of hostilities. Asevents unfolded over the following weeks,it became even more apparent thatGermany—which had been the greatestmilitary power in the world a few shortyears before—was now on the brink of atotal collapse.

Immediately before the guns fell silentin November 1918, the kaiser abdicated. Anew German republic was proclaimedfrom the steps of the Reichstag Building inBerlin. By February 1919 delegates had con-vened in a national assembly to draft a newconstitution. The assembly was held in thePrussian city of Weimar to avoid exposingthe delegates to the turbulent and at timesdangerous atmosphere of Berlin.

The constitution that was hammeredout in Weimar was a remarkable docu-ment, reflecting—as did the constitutioncrafted in Philadelphia in 1789—an amaz-ing assortment of compromises intended

26 Clark Memorandum

Iw a n t t o d i s c u s s t w o s t o r i e s t h a t b e a r o n h o w g o v e r n m e n t s u c c e e d s o r f a i l s .

T h e y a r e n o t p r e c i s e l y p o l a r o p p o s i t e s , b u t t h e y a r e s u f f i c i e n t l y d i s t i n c t t o s h e d l i g h t n o t

o n l y o n t h e i d e a l o f g o o d g o v e r n m e n t b u t o n

t h e c u r r e n t s t a t e o f d e m o c r a c y

i n o u r n a t i o n i n g e n e r a l a n d a m o n g L a t t e r - d a y S a i n t s i n p a r t i c u l a r .

to help bring together states that sawthemselves as independent. The WeimarRepublic was born, and Germany hadentered the era of modern democracy.

But the Weimar era is remembered notfor the hopeful start of a young democra-cy but for its tragic end. The seeds of thetragic end of the Weimar Republic weresown at its founding. The tools of peace-ful compromise and change on whichdemocracy is built were never fullyaccepted by Germany during this period.Political terrorism from the far right andthe far left unraveled the rule of law asfast as a few devoted statesman such asWalter Rathenau could knit it together.The spirit of the time is captured in theoft quoted lines from Yeats’ The SecondComing, written in 1919:

Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world,The blood-dimmed tide is loosed, and

everywhereThe ceremony of innocence is drowned;The best lack all conviction, while the worstAre full of passionate intensity.

Weimar was ultimately overrun by theblood-dimmed tide of National Socialism,and the First World War thus begat aSecond.

The causes and effects of these devel-opments are complex, and my real interesttoday lies elsewhere. What is significantfor present purposes about the Weimarparadigm are some simplified explana-tions as to why the center could not hold,why democracy ultimately gave way tototalitarianism.

Like the collapse of the Soviet Unionin our day, the dissolution of the GermanEmpire stemmed ultimately from a wantof legitimacy. As the German historianErich Eyck put it, “Neither hand grenadesnor machine guns destroyed ImperialGermany, but rather a lack of faith in itsright to exist.”

This lack of faith manifested itself inforces external and internal. Externalforces included the passion of the FirstWorld War’s European victors for repara-tions and the continued occupation ofGermany’s industrial heartland in theRuhr Valley. But even more interesting arethe internal forces. The Weimar Republicfailed ultimately because of a paradox.Political feeling among German citizensran at the same time too hot and too cold.

On the one hand, extremism on boththe right and the left overwhelmed publicdebate and ultimately beat down thefledgling democracy. Communists andnationalists used violence as a means of

destabilizing the regime. Street fightingand murder were accepted means of polit-ical change. Weimar, like the empirebefore it, ultimately failed because themajority of the people preferred extremistarguments to those in support of democ-racy. Coupled with street violence, thisintellectual conflict overwhelmed thepolitical debate. Many who in saner timesmight have evolved into citizens of aworking democracy felt compelled tochoose sides in the more dramatic conflictof right vs. left. The lesson here is thatviolence and hard intellectual oppositioncan undermine democracy.

On the other hand, Weimar is alsoremembered for the profound politicalapathy that prevailed among many whoought to have been the anchors of democ-racy. Extremism’s triumph was made pos-sible because liberal-minded men andwomen refused to participate in what theyviewed as the dirty world of politics.When the processes of government bywhich the democratic will is formed,transformed into policy, and carried intoaction are repugnant to the average citizen,those processes quickly become a charadeand their popular derision grows apace.

From the very beginning the Weimarconstitution lacked an important advan-tage enjoyed by the government founded

27Clark Memorandum

144 years earlier at Philadelphia. Weimarwas a democracy without democrats, arepublic without republicans. Germanyhad acquired a form of constitutionalismbut denied the power thereof.

Thus the outcome of Weimar wasdetermined as much by those who weresilent as it was by those who were shout-ing and marching. Some who could haveprovided effective leadership to the centerin Weimar chose instead to stay home,close their doors and windows, and pullin their doormats. Disillusioned by thehorrors of war and spiritually lost in thecarnality of the 1920s, they simply chosenot to get involved.

Two scenes from the show Cabaret tellthis story very clearly. In an openingscene, the cabaret is filled with fun-lovinghedonists. They appear willfully ignorantof the turmoil outside the doors of theirpleasure house. Songs invite them to viewlife itself as a party, a cabaret. In the finalscene the songs are the same, but theaudience has changed. At every table aremen wearing the uniform of Hitler’s army.

Another example is Max Frisch’s playHerr Biedermann und die Brandstifter (Mr.Everyman and the Arsonists). It tells the storyof a simple citizen who opens his ownhome to men who are transparently arson-ists burning down homes throughout thecity. As his wife complains to her husbandabout their strange and dangerous behavior,Herr Biedermann steadfastly refuses to getinvolved. In the end his apathy is engulfedin the flames that destroy his home.

My third example is closer to home. Itis the story of The Church of Jesus Christof Latter-day Saints and its early interac-tions with the government. Once again,time does not permit a thorough reviewof this history. There is a rich variety ofavailable sources.

What interests me in particular is whatthe leaders of the Church had to say inresponse to situations in which their gov-ernment failed to live up to their expecta-tions that it would ensure basic safety forthem in the free exercise of their religion.

Much of this experience occurred dur-ing a period when the federal constitu-tional protections we take for grantedtoday did not exist as such. The Bill ofRights was seen only as limiting federal

power; it was not applicable to the states.The only source of legal limitations onthe power of state governments in mostcases was state constitutions as they wereinterpreted by state courts.

Joseph Smith, among others, found thiscircumstance to be wholly unacceptable,and he was very direct in criticizing what hesaw as the failure of the federal Constitutionto provide effective enforcement for impor-tant rights such as freedom of religion.Speaking in Nauvoo, Joseph said:

It is one of the first principles of my life, andone that I have cultivated from my child-hood, having been taught it by my father, toallow every one the liberty of conscience. Iam the greatest advocate of the Constitutionof the United States there is on the earth. Inmy feelings I am always ready to die for theprotection of the weak and oppressed in theirjust rights. The only fault I find with theConstitution is, it is not broad enough tocover the whole ground.

Although it provides that all men shall enjoyreligious freedom, yet it does not provide themanner by which that freedom can be pre-served, nor for the punishment of Governmentofficers who refuse to protect the people in theirreligious rights, or punish those mobs, states, orcommunities who interfere with the rights ofthe people on account of their religion. Its senti-ments are good, but it provides no means ofenforcing them. It has but this one fault. Underits provision, a man or a people who are able toprotect themselves can get along well enough;but those who have the misfortune to be weakor unpopular are left to the merciless rage ofpopular fury. [History of the Church, 6:56–57]

Having diagnosed the problem, Josephwas ready with a prescription:

The Constitution should contain a provisionthat every officer of the Government whoshould neglect or refuse to extend the protec-tion guaranteed in the Constitution shouldbe subject to capital punishment; and thenthe president of the United States would notsay, “Your cause is just, but I can do noth-ing for you,” a governor issue exterminatingorders, or judges say, “The men ought to havethe protection of law, but it won’t please themob; the men must die, anyhow, to satisfy

29Clark Memorandum

John

Sny

der

the clamor of the rabble; they must be hung,or Missouri be damned to all eternity.”Executive writs could be issued when theyought to be, and not be made instruments ofcruelty to oppress the innocent, and persecutemen whose religion is unpopular. [Ibid., 57]

Capital punishment as a remedyremains largely outside the scope of mod-ern civil rights law, apparently reservedfor those cases in which a conservativeblack judge is nominated to sit on theSupreme Court.

Nonetheless, Joseph’s fundamental crit-icism of the ineffectiveness of guaranteedreligious liberty was answered in somemeasure when the Supreme Court in 1940“incorporated” the Free Exercise Clause ofthe First Amendment into the constitu-tional limitations applicable to the statesunder the 14th Amendment (Cantwell v.Connecticut, 310 u.s. 296). What mischiefthe Court has done in recent years ininterpreting the substance of those rights isanother topic for another day.

The experience of Joseph Smith and,indeed, most of the early Latter-day Saintswith American constitutional governmentwas initially mixed and ultimately tragic. Itis therefore remarkable that, like JosephSmith, the Saints steadfastly proclaimedthemselves to be loyal “friends” of theConstitution. Had the Constitution or thegovernments it supported been half asfriendly to the Latter-day Saints as theywere to the Constitution, the story ofChurch origins and the Mormon exoduswould be remarkably different.

Although mob violence reached itspeak before the migration, the deprivationof civil and political rights continued toincrease after the Church was establishedin the West. The polygamy issue ignited anational condemnation of the Church andresulted in various laws that ultimately hadthe effect of disenfranchising Church mem-bers and confiscating Church property.

Let me focus on one example from thisperiod: In 1862 Congress passed theMorrill Act, which prescribed punish-ments for the crime of bigamy in UnitedStates territories. Sponsors of the MorrillAct acknowledged that the purpose of thelaw was to prohibit the Mormons frompracticing polygamy.

The Morrill Act was not the most effec-tive step ever taken by the United StatesCongress. Bigamy requires proof that aperson has been simultaneously married totwo or more persons. Prosecutors will rec-ognize this as a difficult evidentiary prob-lem, particularly where the marriages wereperformed not in public but in private reli-gious ceremonies in temples from whichthe public was excluded. Nevertheless, theMorrill Act hung like a cloud over theChurch.

In 1875 a test case was brought before theUtah territorial courts. George Reynolds,private secretary to Brigham Young and thehusband of two wives, was convicted by amostly Mormon jury of bigamy. The ideawas to gain a definitive ruling from theSupreme Court regarding the constitutional-ity of the antipolygamy law.

After some procedural delay, the casewas presented to the United StatesSupreme Court for resolution. Counselfor Brother Reynolds argued that theMorrill Act was a direct violation of theFirst Amendment’s prohibition that“Congress shall make no law prohibitingthe free exercise of religion.” In 1879 theCourt unanimously upheld Reynolds’conviction and the Morrill Act on thegrounds that the First Amendment limit-ed only legislation designed to suppressreligious opinion. It did not, in theCourt’s view, prevent Congress fromcriminalizing religious actions.

The narrow impact of this ruling wasthat Brother Reynolds was sentenced totwo years in prison, which he served in thestate penitentiary in Lincoln, Nebraska.Reynolds was certainly inconvenienced bythis ordeal. He later served as a member ofthe presidency of the Seventy and isremembered as a prolific writer and carefulstudent of the scriptures.

The broader effect of the ruling was near-ly devastating to the Church. Emboldened bythe Court’s remarkable holding that religiousconduct could be proscribed, Republicans inCongress redoubled their efforts to eradicatepolygamy.

I have in my home a copy of the frontpage of the Daily Graphic, a New Yorkillustrated newspaper from the last centu-ry, dated August 21, 1883. It depicts a sav-age mountain man labeled “Mormonism,”

30 Clark Memorandum

dragging women by the hair and con-fronting the goddess of liberty, labeled“the U.S. Congress.” The savage is tram-pling on a piece of paper labeled “theEdmunds Bill.” The caption reads, “TheModern Blue Beard. The Survivor of theTwin Relics—What Does CongressPropose to Do About It?” The referenceto the “twin relics of barbarism” is to theRepublican Party/Know Nothing plat-form of 1856, which called for the eradica-tion of slavery and polygamy as the twinrelics of barbarism.

The illustration adequately captures theanti-Mormon attitude prevailing in thatday, especially among Republican mem-bers of Congress. The Edmunds Act of1882 addressed the shortcomings of theMorrill Act by prohibiting “bigamouscohabitation.” It was easier to prove that aman was living with two or more wivesthan that he was actually married to them.The Edmunds Act also barred persons liv-ing in polygamy from serving on juries,holding public office, or even voting.

Taking it a step further, the Edmunds-Tucker Act of 1887 disincorporated theChurch and authorized seizure of Churchproperty. The territorial government ofIdaho required an oath of all registeredvoters that excluded Mormons and evenformer Mormons from the franchise.

As I review the statements of Churchleaders from the Utah period respondingto the gross deprivations of religious andother liberties inflicted on the Church andits members during that time, I note theiroccasional bitterness at being thus treatedby the nation they supported. I also amimpressed with their flashes of humor.

Let me cite a single example. On July4, 1855, a meeting was held in the boweryin Salt Lake City. Midway through themeeting during an address by Elder g.a.Smith, a table that had been placed on thestand to hold the papers of a federal judge(who had been invited to address theSaints) toppled over, fell off the stand, andsplit in two, making a loud noise. Withoutmissing a beat, Elder Smith said, “So, theend cometh suddenly, the day of corrup-tion is short, and its downfall is sure”(Journal of Discourses, 7:72). The Journal ofDiscourses records that there was “greatlaughter” in the bowery.

But what most impresses me from thestatements of the Church’s leaders duringthis period is their exalted view concern-ing government and the need for citizensto support good government. Despitebeing hounded nearly to extinction by theactions and derelictions of governmentofficials, they maintained a fierce commit-ment to the principles underlying thatgovernment. They also displayed aremarkable vision of the role of theChurch and its members in ultimately pre-serving constitutional government.

Speaking in 1882, Elder Erastus Snowreacted with barely controlled rage to alle-gations in the Eastern press and inCongress that Mormons were abusingtheir children and raising them in igno-rance and squalor. After vigorously deny-ing those charges, he said:

And we are satisfied that ere long [the childrenof polygamous marriages] will be a tower ofstrength in the land, . . . [W]hen the nation, ripein sin and iniquity, led on by reckless dema-gogues and politicians, shall applaud the acts ofthe legislators and judges and leading men inlaying the axe deep in the tree of liberty, untilthey shall sap the juices that give life to ourinstitutions, and thus undermine the founda-tion of good government, it will be sons anddaughters of polygamous Utah, that will befound the true friends of human liberty, thetrue friends of that heaven-born freedom thathas come to us through the fathers of ournation. The love of liberty is born in them, andhuman liberty is a part of the everlasting gospel;and God Almighty has decreed—and let JudgeEdmunds and Congress and all the world hearit—that the gospel of the kingdom is established,never more to be thrown down or given toanother people, that its destiny is to grow andincrease and spread abroad until it shall fill thewhole earth, and no power in earth or hell canstop it. [Journal of Discourses, 23:232–33]

Elder Snow’s statement that membersof the Church would one day be singledout as the true friends of liberty and free-dom is echoed in a later comment madeby George Q. Cannon. Elder Cannonspoke frequently on the subject of politicsand the kingdom of God and deliveredsome of the most remarkable statementsconcerning the future role of the Church

in government. I want to use one of hisgreat statements as a bridge to my nexttopic. Elder Cannon said:

The time will come in this land—I tell younow, ye faint-hearted ones, the time will comewhen the counsels of the servants of God willbe sought for in our own land and in all thestates where our people live, because our con-duct and our management will stand out insuch bold relief in comparison with the man-agement and conduct of others, that they willwant to get our counsel and our help in theirextremity. This will be the case, not only righthere, but elsewhere. [George Q. Cannon,Collected Discourses, vol. 5, April 5, 1897]

With that marvelous legacy, that glori-ous vision of the Latter-day Saints as thetrue friends of liberty, we are to be anensign to the nations, not just in mattersof religion but in government as well. Therole envisioned for the members of theChurch is almost breathtaking.

In light of that vision, it is fitting toask: How are we doing? Are we ready toassume our place as a mecca for good gov-ernment and political culture? Are wewell on the road to fulfill this destiny, oris there something of the ashes of Weimarthat clings to us? Are we tolerant of polit-ical violence? Are we apathetic, shunningthe world of politics as “dirty business”?

Many of my observations concerningMormon political culture are, I readilyadmit, based almost solely on anecdotalevidence. Even more important, as anobserver of Mormon political attitudes, Iam not ideally situated, since my homeand almost all of my activities are not inUtah but in the Washington, dc, area.Nevertheless, I would be an unfaithfulobserver if I did not report that from myvantage point, Latter-day Saints have notyet fully lived up to their potential—theirdestiny—to be an example of good gov-ernment to other nations.

With respect to tolerance for politicalviolence, we must confront the truth thatUtah and Idaho remain homes to some ofthe more virulent strains of the militiamovement. It is indeed disheartening tohear that some of those groups appearedto find succor in communities that arepredominantly Mormon.

31Clark Memorandum

In conclusion, I would like to offer afew thoughts concerning public service—“do’s and don’ts,” if you will.

First, don’t be so consumed by yourmany other responsibilities that you donot take time to become involved ingood government. I have occasionallyheard members of the Church say thatthey have sacrificed their careers or theirpolitical activities for their families ortheir service in the Church. Althoughthis trade-off may be appropriate in indi-vidual circumstances, it seems to me torest on a unexamined notion of the word“sacrifice.” As often as not, sacrifice,when applied to how we budget life’sshort day, means not giving up one wor-thy activity for another. Rather it meansdoing both worthy activities and givingup some cherished but nonessential thirdactivity.

Second, join a political party and beactive in it. Being active in a party givesyou credibility and an outlet to expressyour views. This advice is not a recruit-ment seminar for Young Republicans orCampus Democrats. I am a registeredRepublican and am active in my party.But I don’t believe that Republicans havea corner on good government or decency.Good people in each party are closertogether than they might think. In thelong run, it doesn’t matter as much as youmight think which party you join. Justpick the one you think best expressesyour point of view.

Of course, the Church is neutral onmatters of partisan politics. The Church’sstance has been made clear repeatedly andin the strongest possible terms.

The Church, while reserving the right toadvocate principles of good governmentunderlying equity, justice, and liberty, thepolitical integrity of officials, and the activeparticipation of its members, and the fulfill-ment of their obligations in civic affairs, exer-cises no constraint on the freedom ofindividuals to make their own choices andaffiliations. I am authorized by PresidentMcKay to say that any man who makes repre-sentation to the contrary does so withoutauthority and justification in fact. [Stephen LRichards, in Conference Report, October1951, p. 114–115; emphasis added]

But the more serious Weimar diseaseafflicting Mormons may be political apa-thy. Too many members of the Church ofmy acquaintance proudly tell me thatthey are not involved in politics, that theydon’t even vote anymore. These are, in allother respects, broad-minded people whohave good values. They have simply cometo view the world of politics as tooinfused with self-interest, corruption, andgreed to merit their serious attention.They are more concerned with maintain-ing a good environment for their childrenat home than with society at large.

These politically disaffected are notunique to the Church. Political partieshave come to recognize that these peopleare a major force in politics today.

Do I have any evidence that this is aproblem in the Church other than myown casual observations? Perhaps.

Let me begin with the basics: voter reg-istration and turnout. Focusing on the 1996general election, we note that Utah’s per-centage of voter-age population registeredto vote was 78.8 percent—somewhat higherthan the national percentage of 74.4 percent.But Utah was nowhere near the nationalleader in voter registration. Even allowingfor differences in voter registration proce-dures, Utah does not stand out as a leaderin having its citizens registered to vote in apresidential election year. Montana with avoter registration percentage of 90.05 per-cent, Colorado with 81.98 percent, andOregon with 81.38 percent could be moreaccurately characterized as leaders. Alaskawith 97.6 percent and Maine with 105.96percent are truly lights shining on a hill. (Ican’t explain how Maine managed to regis-ter more voters than it had citizens. Perhapssome of Utah’s voters inadvertently regis-tered to vote in Maine.)

Utah’s voter turnout figures are evenmore lackluster. Utah barely cleared thenational average of 49 percent with avoter turnout of 49.93 percent. Indeed,Utah’s voter turnout percentage wasexceeded by every Western state exceptCalifornia and Nevada. Once again,Maine had national bragging rights with avoter turnout of 71.9 percent.

OK, so much for quantity. What aboutquality? Are Utah’s elected representativesknown for their outstanding abilities and

integrity? Here the picture is franklysomewhat brighter. Focusing on Utah’scongressional delegation, it is fair to saythat they are well respected nationally.However, with the exception of OrrinHatch, who appears from time to time onlists of possible presidential candidates,none of Utah’s congressional delegationhas real national recognition. To be sure,Governor Leavitt strongly impressed theleadership of his party at the RepublicanNational Convention in San Diego lastyear. But his prospects for national promi-nence are uncertain.

Indeed, after Senators Hatch andBennett and Governor Leavitt, the mostrecognizable Utah political figure among agroup I consulted in Washington remainsEdith Greene (formerly) Waldholtz.

But I am wandering from my centralpoint, which is that Latter-day Saints gener-ally are not sufficiently engaged in theprocess of good government and politics tojustify putting a check mark indicating “ful-filled” by the prophecies I quoted above. Ithink that I am on firm ground when I saythat we as a people have not so perfectedthe art of good government that the worldis now ready to beat a path to these moun-tains to learn our unique ways of politicaladministration. The need for members tobe active was strongly underscored in arecent First Presidency letter that

strongly urge[d] men and women to be will-ing to serve on school boards, city and countycouncils and commissions, state legislatures,and other high offices of either election orappointment, including involvement in thepolitical party of their choice.

How will this challenge and the prophe-cies mentioned above be fulfilled? Moreimportant, who will fulfill them? I believethat, to a great extent, it will be the risinggeneration that will bring renown to theChurch and to our communities of Saints,not only on the Wasatch Front but wherev-er the Saints are congregated throughout theworld. As you contemplate your lives on the“outside,” please bear in mind the religiousimperative each of you carries to be the bestsort of citizen, to be actively involved inpromoting good government, and to renderpublic service in the course of your career.

32 Clark Memorandum

Mormons are viewed by many politicalobservers—and indeed by many members ofthe Church—as being most closely associat-ed with the Republican Party. This is a deepirony. In the 19th century the RepublicanParty’s “demagoging” of the polygamy issueas one of the “twin relics of barbarism” wasthe wellspring of much ill feeling toward theChurch. Indeed, the brethren had to activelyencourage a few members to join theRepublican Party to specifically avoid beingviewed as a one-party people.

Being identified with a single party haspractical consequences as well. The currentassumption in political circles that the vastmajority of Mormons are “safe” Republicanvotes is comparable to the assumption thatAfrican-American voters are “safely” demo-cratic. Indeed, the experience of the twogroups illustrates important political truths:A group identified with a single politicalparty runs the risk of losing a great manypolitical battles. Also, ideologically safeconstituencies tend to be taken for grantedby their own parties.

Third, volunteer to work for a candidatewhose principles are compatible with yourown. You may begin by stuffing envelopes,but you will be surprised how quickly yourtalents and interests are recognized.

Fourth, put quality into your politicalefforts. Too much political and governmen-tal work, particularly writing, looks like itwas done by amateurs. The extra effort todo quality work is minimal in light of itseffectiveness. Remember, it will be the qual-ity of our approach to good governmentthat will attract the notice of the world.

Fifth, never confuse your politicalchoices with doctrine. Don’t view thosewho disagree with you as anything otherthan fellow citizens who happen to be

wrong. One of the problems of theChristian Coalition and other conserva-tive groups until very recently has beenthat you can’t disagree with them on oneissue. If you are against them on oneissue, you are anathema to them.Remember the advice of Ronald Reagan:Just because someone disagrees with me20 percent of the time doesn’t make himmy enemy. He is my ally.

Sixth, if you are given the opportunityto serve in government in any capacity,keep your personal integrity. Most whoserve in federal or state government do soonly after taking a solemn oath.Remember that oath. It is not a personaloath of the sort administered to Germantroops in the Nazi regime to support theideas of one man. It is a constitutionaloath that binds the individual to protect-ing constitutional government. Knowbeforehand what your principles are.Occasionally we have seen how the morallapses of a member in a conspicuous posi-tion of trust can bring discredit to theChurch. Keep the commandments. To usea metaphor of some relevance at this insti-tution, it is a bit like knowing your limitswhen you are dating. Appropriate limitsare difficult to set when temptation is pre-sented. Wear your values comfortably, noton your sleeve, but like a mantle that fitsyou well.

Seventh, develop a sense of history. Iam amazed at how often issues recur inour system of government and howunaware most participants are that nearprecedent exists for the positions they aretaking. Knowing history can save you agreat deal of trouble.

Finally, remember that the good newsabout your political involvement is that

33Clark Memorandum

you can change the world. The bad newsis that you just might change it for theworse. Be as certain as you can possiblybe of the correctness of your principles,but avoid hubris. Remember the best andthe brightest are often the most dangerousfolks in town.

You have a great advantage over manyothers who enter government service andpolitics. From your service in the Church,I hope you have learned how to workeffectively with people and to make themfeel a part of both problems and solu-tions. You may have had the opportunityto apply the counsel given by Elder M.Russell Ballard over the course of severalrecent addresses in general conference andin his recent book concerning the powerof councils. Much of this knowledge has adirect application in the world of politicsand government.

Even more important, you have anembedded system of values that make youlike precious gold in the moral wastelandthat is late 20th-century America. Be trueto those values. Teach them to your fami-lies. They are precisely what are needed inthe coming era.

It is my sincere hope that you will bethe generation that reaches the full poten-tial for the Church to be an ensign to thenations in matters of government.

Timothy E. Flanigan graduated from byu with a

degree in history in 1977. He received his law degree

from the University of Virginia in 1981 and served as

a senior law clerk to the late Chief Justice Warren E.

Burger. Tim lives in Great Falls, Virginia, and is cur-

rently writing the authorized biography of Warren

Burger. This address was given as an Honors lecture

at Brigham Young University on October 9, 1997.

T h e o u t c o m e o f W e i m a r w a s d e t e r m i n e d a s m u c h b y t h o s e w h o w e r e s i l e n t a s i t w a s b y

t h o s e w h o w e r e s h o u t i n g a n d m a r c h i n g .

S o m e w h o c o u l d h a v e p r o v i d e d e f f e c t i v e l e a d e r s h i pt o t h e c e n t e r i n W e i m a r c h o s e i n s t e a d t o s t a y h o m e ,

c l o s e t h e i r d o o r s a n d w i n d o w s , a n d p u l l i n t h e i r d o o r m a t s .

35Clark Memorandum

Patrick A. Shea

In recent years American society has undergone a marked deterioration in civility, espe-cially as it relates to political discourse. Ad hominem arguments, which seek to demonizethose with opposing views, have become all too common in today’s political debates.This is a disturbing trend, because civil discourse is a “precondition of a democratic soci-ety,” as Jesuit theologian James L. Connor has observed. · John Adams, notesConnor, recognized the threat of uncivil discourse to the emerging American democracyin a letter he penned in the spring of 1776. “We may please ourselves with the prospect of

free and popular governments, God grant us the way,” Adams wrote. “But I fear that in everyassembly members will obtain an influence by noise rather than sense, by meanness ratherthan greatness, and by ignorance and not learning, by contracted hearts and not large souls.”

· This “influence by noise rather than sense” is particularly evident today in the negativepolitical commercials and shallow news coverage we see on television, which places a premiumon catchy, often inflammatory “sound bites.” This sound-bite superficiality encourages incivili-ty in our society because, as Elaine Chao, distinguished fellow at the Heritage Foundation,

CivilityCivility:

City Creek CanyonPhotographyby John Snyder

A Necessity,

Not a Luxury,

in the American

Political System

36 Clark Memorandum

est, vigorous public debate, because manypeople who would like to engage in suchdiscussions don’t do so because they are(rightly) concerned that they will be sub-jected to character assassination.

“Too often in today’s politics, battlesare waged as a choice between truth andfalsehood, not between competing truths,”Mann observes. This type of argumenta-tion creates an “us vs. them” mentality,which has been evident in antigovernmentrhetoric and acts of antigovernment vio-lence—the most horrible of which was theApril 19, 1995, bombing of the MurrahFederal Building in Oklahoma City.

The “us vs. them” mentality manifestsitself in a variety of public policy mat-ters, including public land issues involv-ing the Bureau of Land Management.Frequently the issue at hand has to dowith whether certain natural resourceson the public lands should be developedor conserved, with commodity interests

points out, “It encourages people to jumpto conclusions, and to speak withoutthinking, and to say bombastic things inorder to capture attention.”

I became acutely aware of how muchnoise we have in our lives after spending15 days in relative solitude going down theGrand Canyon in a wooden dory. Afterthat trip I was amazed at the amount ofsound we impose on ourselves each daythrough televisions, radios, and cd play-ers. In such a noisy environment, it is per-haps not surprising that some haveconcluded that the way to win an argu-ment is to shout louder, rather than rea-son better, than one’s opponents.

But civil discourse does not meaninhibited or boring debate. Thomas Mann,director of the governmental studies pro-gram at the Brooking Institution, percep-tively notes: “It’s incivility that frustratesthe democratic ambition of fully airinghonest differences.” Incivility inhibits hon-

One of Brigham Young’s first actions after arriving in Utah was declaring CityCreek Canyon off-limits to logging, mining, or any other activity that could pol-lute the creek next to growing Salt Lake City.

37Clark Memorandum

supporting development and environ-mentalists favoring conservation. Unlesseach side engages the other in a civilmanner, an “us vs. them” mentality canset in, with the opponents framing theparticular issue in black-or-white, “devel-opment vs. conservation” terms.

Moving beyond this “us vs. them” men-tality requires adversaries in a democracyto recognize that they are generally offering“competing truths” rather than truth orfalsehood. When it comes to public landissues, the “competing truths” of commodi-ty interests and environmentalists reflectthe fact that the blm’s land-managementmission involves the “competing truths” ofdevelopment and conservation.

The blm’s mission, as Congress setforth in the Federal Land Policy andManagement Act (flpma) of 1976, is tomanage the public lands for multiple uses.flpma defines multiple-use managementas “the management of the public landsand their various resource values so that

they are utilized in the combination thatwill best meet the present and futureneeds of the American people.” By defin-ing multiple-use management so broad-ly, Congress gave the blm a complex“both/and” mission—that of promotingboth development and conservation.

From an “either/or” or a “truth/false-hood” point of view, the blm’s mission con-sists of two conflicting tasks rolled into one.But from a “both/and” or a “competingtruth” perspective, the blm’s mission con-tains two complementary components: thatof facilitating the development of publicland resources and that of preserving thepublic lands for the use and enjoyment offuture generations.

My Western heritage is, no doubt, oneof the reasons why I see no contradictionbetween conservation and development.My mother’s family were Mormon pio-neers, and the pioneers who settled in theSalt Lake Valley knew that conservation

was essential for survival. One of BrighamYoung’s first actions after arriving in Utahwas declaring City Creek Canyon off-lim-its to logging, mining, or any other activi-ty that could pollute the creek next togrowing Salt Lake City. The passage oftime vindicated Young’s decision, showinghow seeming opposites—conservationand development—can actually comple-ment each other.

While not every public land issue (orevery public policy issue) lends itself toa recognition of competing truths, it ispossible for ideological opponents—even in debates over highly volatile sub-jects—to treat each other with respect.This approach to argumentation is notmerely civil but more effective than adhominem attacks. This is recognized byelected officials who practice civility.For example, Rep. James E. Clyburn (d-s.c.) has cited numerous legislative suc-cesses resulting from what he calls his“kinder, gentler” approach “to life in

general and politics in particular.” “Otherapproaches may make more headlines,”Clyburn writes, “but I question if theywill make much headway.”

Besides inhibiting many people fromparticipating in public debate, the declineof civility has undoubtedly deterred manygood men and women from running forpublic office. This deterrence is completelyunderstandable, as office seekers enter anarena where abusive detractors can makeone question whether running for office isreally worth the effort. If America is tothrive as a democracy in the 21st century,we must restore civility to political debateso that we can attract good people to runfor public office and stop driving out goodindividuals who already hold office.

With recent revelations and reveling inWashington, dc, the ability to attract goodand vigorous people to public service willbe a significant challenge. The concept ofcivility must apply not just to public ser-

vants and their public discourses butequally to members of the press, with theirimportant First Amendment duties. Thislatter group, in our day and age of techno-logical revolution, have an obligation toeach of us, as well as to their families, to“print the news fit to print” and not slipdown the slippery slope of smut and mire.

Promoting civility in public life, ofcourse, “has to mean something morethan mere politeness,” note Guy andHeidi Burgess, codirectors of the ConflictResolution Consortium at the Universityof Colorado. “The movement will haveaccomplished little if all it does is get peo-ple to say, ‘Excuse me please,’ while they(figuratively) stab you in the back. Civilityalso cannot mean ‘roll over and play dead.’People need to be able to raise tough ques-tions and present their cases when theyfeel their vital interests are being threat-ened.” The key, the Burgesses write, is toidentify and carry out constructive advo-cacy strategies that, wherever possible,

allow adversaries “to reframe the conflictin ways which transform win-lose con-frontations into win-win opportunities.”

As director of the blm, I am committedto civility—meaning constructive advocacyand debate—in connection with publicland issues, as well as all other public poli-cy matters. In a democracy, whose hall-mark is nonviolent dispute resolution, thiscivility is a necessity, not a luxury. As JohnAdams put it in 1776: “There is one thing . . .that must be attempted and most sacredlyobserved, or we are all undone. Theremust be decency and respect and venera-tion introduced for persons of every rank,or we are undone. In a popular govern-ment, this is our only way.”

Patrick A. Shea is director of the United States Bureau

of Land Management. This article was adapted from a

speech given at the J. Reuben Clark Law School on

October 18, 1997.

Too often today’s political battles are waged as a choice between truth and falsehood not between competing truthsToo often, today s political battles are waged as a choice between truth and falsehood, not between competing truths.

38 Clark Memorandum

Steve Averett’s smile is contagious. Last fallhis smiling face was seen silk-screened ontonumerous T-shirts along with the popularslogan “I want to be like Steve.” Steve him-self smiles as he talks about his gratitudefor the law students’ T-shirt campaign. Buthe is visibly embarrassed when he encoun-ters students wearing “his” T-shirts. Tryingto prevent the conversation turning towardhim, he quickly changes the subject fromhimself to the students by pointing outtheir accomplishments. However, Steve’sproficiencies in the professions of teaching,law, and librarianship set an example ofexcellence for all the students and facultyat the J. Reuben Clark Law School. Indeed,he personifies to many the slogan “I wantto be like Steve.”

Growing up in Price and Springville,Utah, Steve saw examples that taught himthe virtue of serving others in all aspectsof life. His mother served people in herprofession as a librarian, and his fatherhelped others as a life insurance salesman.His father’s deep concern for others evencarried over into the proper care of thefamily’s animals. One year spring was late,and they didn’t want an expectant sow’spiglets to freeze. Steve and his Dadcleared out part of the basement to makeroom for them. “We were the only familyin town with pigs living downstairs,”Steve chuckles. “My father was very gen-erous, to the point of being tenacious inhis giving. I owe a great deal to myfather’s example.” Another role model inPrice was Steve’s Church leader, BishopDon Keller, a practicing attorney. He waskind and caring and took a genuine inter-est in others, including young Steve, whonow says, “When I think of good lawyers,I think of Bishop Keller. He is my exam-ple of the kind of lawyer I’d like to besomeday.”

Steve singles out his Springville HighSchool debate teacher as another majorinfluence on “a painfully shy and intro-

verted young man.” She spent hours withhim, had him practice “being mean” in themirror, and taught him to present himselfand his ideas in a persuasive manner. “Iwant to help students the way she reachedout and helped me,” he says.While Steve served as an lds mis-sionary in Taiwan, his desire tobecome a good teacher increased.Later he studied education incollege for four years, thentaught in the Nebo SchoolDistrict in Springville for sevenyears. Steve continued to perfecthis teaching skills, not knowingthat his future would bring himmany more occupational oppor-tunities.

Change came as Steve consid-ered further training. He and hiswife, Susan, had three of theirseven children while he attendedgraduate school. In 1985, whileteaching in Springville, Stevereceived his master of library sci-ence degree with an emphasis inschool librarianship—completing

his master’s thesis on ways teachersmotivate students to read. He worked asa librarian in Springville for awhile, yethe felt unsettled—something was miss-ing. Then he remembered his high schoolinterest surveys suggesting an aptitudefor law, teaching, and writing. He decid-ed to pursue a legal education andenrolled in the J. Reuben Clark LawSchool, where he became fascinated withthe ability of the law to help peopleresolve their problems. During this timeSteve clerked briefly for byu’s Office ofGeneral Counsel, participated in divorcemediation cases, and was case note edi-

tor for the law school’s Education andLaw Perspectives journal.

Steve spent the next few years devel-oping his skills as a teacher, lawyer, andlibrarian. He clerked for Judge B. LynnWinmill in Idaho for a year, thenreturned to Utah, where he taught schoolfor another year. He taught legal bibliog-raphy classes to the graduate students atthe byu library school and served as judgepro tem for the Fourth Circuit Court inUtah Valley. He also spent two years han-dling domestic relations and public bene-

fit cases as a staff attorney at Utah LegalServices in Provo.

“I can’t say enough good things aboutSteve’s work as a public service lawyer,”says Susan Griffith, the managing attor-ney of Utah Legal Services when Steveworked there. “He was the most preparedattorney I ever saw in court. He spent theextra time preparing because he cared sodeeply for his clients. He’d get excellentresults by hard work, not by yelling theloudest.”

Steve’s service to others continued inearly 1993 when he moved to Oxford,Mississippi. He served as public services

I Want to Be Like Steve

“I want to be like Steve.” Steve himself smiles as he talks about his gratitude for the law students’ T-shirt campaign. But he is visibly embarrassed

when he encounters students wearing “his” T-shirts.

P o r t r a i t s

Port

rait

Pho

togr

aphy

by

Bra

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ade

39Clark Memorandum

librarian, assistant director, and then act-ing director of the University ofMississippi Law School Library. In 1994he was named outstanding law schoolstaff member of the year, and in 1995,outstanding law professor of the lawschool.

A chance to move closer to homebrought Steve and his family to Boise,Idaho, where he helped automate theIdaho Supreme Court Law Library as itsdirector. Two years later he was offered aposition at byu. Steve smiles as he says,“When the byu law school/law libraryposition came open, I felt I was cominghome.” Susan Griffith, now assistantdirector of byu’s law school externshipprograms, shares her gratitude for Steve’sreturn: “When we heard he was coming,we screamed, danced for joy, and thenwe cried. I knew how good he was, andwhat a difference he’d make in whateverhe did at byu. The law students have atrue friend in Steve Averett.”

Other Law School staff echo similarpraise. Curt Conklin, the law library’shead of technical services, comments,“Most law librarians focus either on beinglawyers or on being librarians. Steve is thefirst one here to be professionally trainedas a teacher and then as a lawyer andlibrarian. That’s why he cares so deeplyand so well for the students.” Gary Hill,the law library’s associate director adds,“Steve is extremely thorough in all hedoes—his classes, his reference work, andhis genuine relationships with others. Hiswillingness to help all types of people iscontagious, and just being with himmakes me want to be a better person.”

Steve smiles as he expresses similarsentiments about the Law School: “Thequality of the students, staff, faculty, andlibrarians at this law school is tremen-dous. I’m humbled to work with thepeople here, to see what they are accom-plishing, and to be a small part of theirwork. This is one of the greatest lawschools in the country because of thededicated and strong people here.”

Truly, Steve’s dedication and strengthas a teacher, lawyer, and librarian moti-vate others to want to be like him, manyof whom proudly wear the words “I wantto be like Steve.”

byu’s last jd/mlis graduate hasreturned. G. LeGrande Fletcherjoined the Howard W. HunterLaw Library staff in November1997, four years after earning thelast dual law and library-sciencedegree given out at byu. OtherJ. Reuben Clark law graduatesattended library school, but hewas one of a select handful to doboth simultaneously. With theclose of the byu library school in1993, his education and trainingbecame even more unique. Nowthat he is here, LeGrande feelsvery fortunate to have attendedbyu and have the opportunity to

work here. He is anxious to use his back-ground and experience to help other mem-bers of the byu Law School community.

LeGrande is no stranger to libraries, par-ticularly those associated with higher educa-tion. He was a librarian for the lds Instituteof Religion in Huntington Beach, California,before he graduated from GoldenwestCommunity College with an associate degreein communications. The Harold B. LeeLibrary hired him to organize materials in itsarchives part-time for two years while he fin-ished his bachelor’s degree in history (with aSpanish minor). He also did a short intern-ship in the archives and spent a great deal oftime in the library doing historical research.

Later, during his second year of lawschool, LeGrande began to look at librarian-ship as a career and not solely a means ofgetting through school. He reminisces, “Iwas working part-time at the byu history/religion reference desk as a second-year lawstudent and realized I enjoyed law andlibrarianship. I felt like a fish swimmingevery day between two different, enjoyableplaces, and I wanted to bring them togeth-er.” He talked to other librarians and beganlooking for ways to combine his interests.

The opportunity to do more withlibrarianship and law came sooner thanLeGrande expected. At the end of his sec-ond year of law school, he was hired towork full-time as a catalog paraprofessionalfor the byu Harold B. Lee Library. This wasmore than a summer job; he eventuallyworked four years as a library paraprofes-sional full-time while he finished lawschool part-time. LeGrande comments, “Iwas fortunate to get very practical, hands-on training in library technical servicesduring my years at the Lee Library. Manypeople there took the time to teach me tohelp library users by doing the behind-the-scenes work well. At first some of them didnot understand why a law student wouldbe working in a nonlaw library, but theywere patient with me anyway.”

LeGrande’s library experience helpedhim in law school, too. His research abili-ties assisted him as a member of the LawSchool’s Jessup International Law MootCourt team, as executive editor and leadarticles editor of the Law School’sInternational and Comparative Law Annual,and in compiling a legal research guide forCole Durham’s eastern European seminar.

LeGrande Fletcher: One of a Kind

“Law librarianship is a people profession, and my own background

shows how important other people are to what I do now.”

40 Clark Memorandum

“LeGrande Fletcher’s broad library experi-ence helped many other students when heworked with icla,” says Professor Durham.“He was a ‘bluebook whiz’ as well andalways willing to help others improve theirlegal research and writing skills.”

When the byu library school announcedit would be closing, LeGrande was admit-ted to its last class. He hammered out adual-degree program, which allowed him tofinish his law and library-science degreestogether in August 1993. “I had permissionfrom the university, the Law School, andthe library school—and my wife—not tosleep for about six months,” says LeGrande.

His first professional law library posi-tion came shortly thereafter, when he washired as the technical services librarian forthe Washoe County Law Library in Reno,Nevada, in April 1994. His wife and fourdaughters moved to northern Nevada,where LeGrande learned about computersand people in law libraries. He plannedand carried out a conversion of the lawlibrary’s paper files to computer files, setup the library’s Internet access, and creat-ed a Web page. Bruce Beesley, chair of theboard of trustees of the Washoe CountyLaw Library, noted that LeGrande’s effortsresulted in technological advancementswell ahead of when otherwise expected.LeGrande’s other emphasis in Reno washelping people directly. He helped attor-neys, judges, and the public find librarymaterials daily, and he worked to improverelations between his library and others inthe state. Sally Kinsey, 1997 president ofthe Nevada Library Association, adds,“LeGrande has a good mind and an under-standing spirit and has been a very positiveinfluence for Nevada libraries. He is trulyan ambassador for good in all he does.”

LeGrande points out the good influenceother librarians, lawyers, and law professorshave had on him, especially as he returns tobyu: “I am very grateful to the many peoplewho took the time to help me learn betterhow to serve others. Law librarianship is apeople profession, and my own backgroundshows how important other people are towhat I do now.” Hired as government docu-ments and microforms librarian, LeGrandehopes to contribute his unique talents tohelping the law students, faculty, and othersat byu.

Kristin Gerdy has spent more time thanmany balancing legal and religious studies.While attending law school she workedfor Religious Education on campus,including the Department of ChurchHistory and Doctrine. Her advanced legalwriting paper was on “Incorporating theLaws of God into the Practice of Law.”Since graduating cum laude from lawschool in 1995, she has continued in herdesire to better integrate the study of lawand religion.

As one of the newest members of theHoward W. Hunter Law Library staff,Kristin says she feels an even strongerneed to emulate the life of PresidentHoward W. Hunter and to help law stu-dents learn how he balanced his religiousdevotions and legal practice. “It is noteasy,” says Kristin, “but we can try to bet-ter balance the study and practice of reli-gion and law. I do not claim to have allthe answers nor even to know all thequestions, but I have spent some timelooking for them.”

Kristin’s time studying religion beganin earnest when she joined the ldsChurch at age 12 in Colorado with herparents and two younger sisters. She put agreat deal of effort into discovering all shecould about Mormonism. Kristin com-ments, “I missed all the Primary-agedclasses for young Mormon children andfelt like I needed to catch up somehow.”As a teenager in high school, Kristin wasso motivated to learn about her new reli-gion that she never missed a day of semi-nary in four years. Her interest continuedwhen she applied to attend BrighamYoung University.

As a journalism major at byu with aminor in English, Kristin acquired anotherstrong interest—law. She was intrigued bythe many facets of law she encountered inher journalism courses. Her communica-tions law class with Dallas Burnettsparked an intense desire to study law; shereceived the highest grade in Burnett’scourse and wanted to know more. Kristin’swriting skills and interest in law led to her

invitation to present a paper at theWestern Journalism Historians Conferenceat uc Berkeley. As one of only two under-graduates invited to speak at the confer-ence, she talked about politics and theAmerican Society of Newspaper Editors.Kristin graduated from college in April1992 and spent the summer working as abusiness reporter for the Daily Cameranewspaper in Boulder, Colorado. Herinterest in legal issues also led to her appli-cation and acceptance to the J. ReubenClark Law School.

Kristin began law school in August1992 and “loved everything” about it.Getting to know the faculty was a high-light for her, as were the friendships shemade running the first-year moot courtcompetition. She enjoyed observing howreligious law students and law professorslive their lives and studied how religionand law interact and what lds Churchleaders teach about the relationshipbetween the two. She worked as a legal-writing teaching assistant and as aresearch assistant for Religious Education.

During her first law school summer,Kristin analyzed religious issues from adifferent perspective, reporting for theDaily Camera on Pope John Paul II’s visitto Denver for the Eighth World YouthDay in August. Her second law schoolsummer, she compiled all of PresidentHoward W. Hunter’s speeches and writ-ings for the Religious Education area.While doing so she looked closely atPresident Hunter’s twin commitments tolaw and religion, how his legal traininghelped his Church work, and how hisChristian values influenced his legal prac-tice. During her last year of law school,Kristin taught religion classes and com-piled copies of articles and talks discussingthe relationship between religion and law.She wanted to help herself and others be“better able to balance” responsibilities toone’s profession and one’s creed.

Kristin’s study of law and religion moti-vated her to reach out and share with oth-ers what she had learned. After finishing

Kristin Gerdy: Able to Balance

41Clark Memorandum

law school in 1995, she tried tohelp college and high school stu-dents learn more about religion.Continuing to teach part-time forthe byu Department of ChurchHistory and Doctrine, she beganteaching lds seminary classes tostudents attending Oquirrh HillsMiddle School in Riverton, Utah.When a part-time position as areference librarian and legalresearch instructor came open atthe Howard W. Hunter LawLibrary, she hoped she couldteach law students some of whatshe had learned. She workedpart-time for Religious Education

as well as the Law School until her lawlibrary position became full-time in the sum-mer of 1996. In the meantime she publishedarticles and made conference presentationson legal research issues to members of thelegal community and law library profession.

As a full-time faculty librarian, Kristinsays she encourages law students toaddress the issues involved in integratingreligious and legal demands. Pointing tothe examples of byu law professors, the

many graduates of the Law School, andother lds attorneys and Church leaders,she hopes to help students recognizepotential conflicts, solutions, and conse-quences before they begin legal practice.Howard W. Hunter and J. Reuben Clark,Jr., are her models of those who haveexcelled in law and religious devotion andin coordinating the demands of both. “Lawtakes time. Religion takes time,” Kristinsays. “And balancing them takes time.”

In the Latino culture, there is an expres-sion that embodies the remarkable lifeof Lorena Riffo. When one does some-thing with enthusiasm, determination,and great vitality, she or he is said to bedoing so con ganas! Lorena has lived herlife con ganas since she and her parentsleft Chile as political refugees in 1980.She has also filled each moment of herlife with activity and action. She laugh-ingly admits to having been a hyperac-tive child and suggests this as anexplanation for her great energy.

“It is not easy, but we can try to better balance the study

and practice of religion and law. I do not claim to have all the answers

nor even to know all the questions,

but I have spent some time looking for them.”

Glenn V. Bird

Lorena P. Riffo: Living Life con Ganas!Lorena’s father was the head of Chile’s

Association of Artists. In 1973 a successfulcoup overthrew the regime in power. Theleaders of the new government torturedLorena’s father, trying to persuade him tomodify his beliefs. So as soon as he could,he and his family left his homeland andsettled in Salt Lake City. This was a movethat would prove to be traumatic, espe-cially for the children, but it was neces-sary in order to survive.

Lorena has always approached lifewith a sense of adventure and optimism,

which has aided her in her struggles andsetbacks along the road to success.Memories of her sister bravely climbingback into bed during the Chilean coup,refusing to lie on the floor one moreminute to avoid the machine gun fire, alsoinspired her to greatness.

Without knowing a word of English, the13-year-old Lorena was placed in the SaltLake City public school system. After yearsof struggle and determination, she graduat-ed from Highland High School in 1985.Now, with just a hint of an accent in hervoice, she looks back on her experienceswith a sense of pride. She also acknowl-edges how difficult it was to learn a newlanguage and to adapt to a foreign culture.

According to a recent article aboutLorena published in the Deseret News,from the time she was very young she hasbeen guided by her mother’s words: “Ifyou want change, you have to make thechange.” As a child, she witnessed her par-ents “practicing what they preached.”Following that example, Lorena continuesto work for positive change for herselfand those around her.

Typical of Lorena’s energy and charac-ter, she entered the University of Utahafter graduating from high school, drivento gain as much diverse knowledge as pos-sible. That’s why, in 1989, she was awardeda bachelor’s degree in sociology—and acertificate in criminology and a minor inFrench. Her success displayed a great apti-tude for academics.

Lorena next set her sights on a lawdegree. She enrolled in the J. ReubenClark Law School and graduated in 1993.While still at byu she worked for SenatorOrrin Hatch and former Senator JakeGarn. She also clerked for Federal DistrictCourt Judge David Sam. Rubbing shoul-ders with important people was nothingnew to Lorena. Her home in Chile wasconstantly visited by high-profile guests.

The year following her graduation, UtahGovernor Michael Leavitt appointedLorena director of the State Office ofHispanic Affairs. Before this appointmentshe worked as a juvenile justice project-and-programs specialist for Utah’s Commissionon Criminal and Juvenile Justice. She wasalso an important contributor to theGovernor’s Hispanic Advisory Council,

can help all people to see each other asindividuals, not just as members of agroup.” Her grandmother would undoubt-edly praise Lorena for this attitude andfor her enthusiasm.

Lorena had her staff working on sever-al diverse projects, one of which involvedWendover, Utah—a target communitybecause of its large Hispanic population.Not long ago, Governor Leavitt’s wife,Jackie, drove there to deliver a 45-minutespeech for a conference on Hispanic rela-

tions. Another part of the program was awell-received short performance by BalletWest. Lorena believes the warmth andgenerosity of the Wendover Hispaniccommunity could well serve as a modelfor other areas. “Parents tell me their chil-dren feel safe there,” she says. She alsorecognizes “a feeling of sharing,” whichshe would like everyone in Utah to feel.

Assessment visits were completed inSt. George, Ogden, Logan, and Park City.While visiting St. George, Lorena resolvedto instigate a statewide program to helpDriver’s License Division officers betterunderstand the needs of the Latino com-munity. Working with Bart Blackstock,

head of the Driver’s License Division, aprogram of diversity training was initiatedthat is in effect today.

Programs for Hispanic Affairs alsoincluded coordinating efforts with otherethnic groups. In addition, several impor-tant celebrations, like the Cinco de MayoFestival and the Hispanic Festival inAugust, have become cultural showcases.

Lorena’s overall strategy for improvingconditions for the Hispanic residents ofUtah was breaking down walls and build-ing foundations through the arts, religion,politics, business, and the education sys-tem. She helped accomplish her goals bybeing approachable. “My door is alwaysopen,” she continues to say, promisingthat “when you phone I may not be in,but I’ll get back to you.”

Continuing her educational quest,Lorena was awarded a master’s degree inpublic health by the University of Utah inJune 1997.

New challenges came Lorena’s way whenshe became the assistant director of theUtah State National Business DevelopmentOffice. A part of the Department ofCommunity and Economic Development,this office is generally charged with recruit-ing new businesses to the state. Lorena wasinstrumental in bringing the Malt-O-Mealcorporation to Tremonton. This $300-mil-lion-dollar-per-year investment will be a realboon to northern Utah.

Lorena is currently director of theDivision of Corporations and CommercialCode. Her office registers all businesses inUtah each year. They also commissionnotary publics, monitor limited liabilitypartnerships, and regulate bonding collec-tion agencies. She has given herself oneyear to implement a plan of allowing busi-nesses to do filing and submit annualreports through electronic mail.

Lorena is married to Ken Jenson ofPrice, Utah. They dated four years andhave a happy and successful marriage. Shecredits her supportive husband for muchof her success. For his part, Ken realizeswhat a find he has in Lorena. And heknows she will live each day con ganas!

Glenn V. Bird is a freelance writer fromSpringville, Utah.

42 Clark Memorandum

and her participation in the Utah HispanicWomen’s Leadership Institute was consid-ered vital to the program’s success. On thenational level, she was a resourceful mem-ber of the United States Senate Committeeon Hispanic Affairs. Although Lorenaunderplays the significance of her achieve-ments, the excellence of her performancehas always spoken loudly.

There have been career disappoint-ments, but they have not deterred her. Oneexample is her nomination by GovernorLeavitt to be the staff director ofthe Committee for ConsumerServices. Her nomination wasnot confirmed, because criticsfelt she lacked the necessarybackground and her legal trainingwas not directed toward utilitieslaw. The governor expressed hiscomplete confidence in Lorenaand said he did not regret thenomination in the least. He washer biggest supporter throughoutthe confirmation process.

As director of the Utah StateOffice of Hispanic Affairs,Lorena was characterized bysome as a “ball of fire.” Co-workers marveled that her jobwas essentially a 24-hour-per-day job, because she was alwayson call. She spent much time in

the office, but she also tried to attend asmany cultural events as possible thataffected the Hispanic community.

Conscientious in her duties withHispanic Affairs, Lorena was responsiblefor three staff people and two shared sec-retaries. As she told the Deseret News,“Our biggest challenge as a state is under-standing that we are a diverse communitymade up of taxpayers. I think Utah is anincredible place. I always tell my friendsthat my family left a life of wealth inChile for a life of freedom in America.Utah is a place of immigrants, a safe havenfor people who have not been accepted inother places. My hope is that our office

“Our biggest challenge as a state is understanding that we are a diverse

community made up of taxpayers. I think Utah is an incredible place.”

the peace. The sources arearchival and personal papers,as well as court and countyrecords, legal codes and ordi-nances, business archives, andpolitical/historical journals.The focus is on the interplaybetween law and society andlaw and society’s institutions.Such social and organization-al legal histories are closelyrelated to, and sometimesconsidered, political histories.

The varieties of sourcesand perspectives are multi-plied across locations, histori-cal time periods, and areas oflaw (water, mining, AmericanIndian, etc.). In addition, therehas not been a comprehensivelegal history written for anyarea or state in the westernUnited States.7 So, if you seemconfused8 at where to startresearching or reading westernlegal history, perhaps you cantake some consolation fromthe elephant riddle “How doyou eat an elephant?” Answer:“One piece at a time.”9

Top 12 Sources

For a little guidance as to whereto start chewing, here are mytop 12 sources for beginninglegal history research onAmerican western topics, inorder from very useful to use-ful: The first four are bibliogra-phies and guides to furtherresearch. The next two are liter-ature reviews. Sources 7 to 10are legal histories of variousaspects of the West, and the lasttwo are a dissertation andanother bibliography. Most uni-versity and law school librariesin the western United Stateshave these sources. All of themare available at Brigham YoungUniversity.

A third and related classifi-cation for many history-trained legal historians is legalhistory as a history of anarea’s legal and quasilegalinstitutions. These includecourthouses, jails, county andcity governments, and stateagencies. Sheriff and policedepartments are sometimesincluded, as well as vigilanteactions, lynchings, andextralegal methods of keeping

Law v. History

Western and American legalhistory suffer from similardebates over definition andperspective.4 Many of thesedifferences exist becausesome legal historians are his-tory-trained and others arelaw-trained.

Many lawyers and judgesare interested in legal historyas a history of a state orregion’s laws, with an empha-sis on constitutional, judicial,and legislative histories.Their “history” sources arelegislative debates andrecords, judicial and attorneygeneral opinions, case law,and law review articles. Theinterest is in an intellectualhistory of the law and itsjurisprudence.5

In contrast, legal historianswith history graduate degreesoften view legal history as ahistory of the state’s legal prac-titioners—biographies of attor-neys, judges, and support staff.Often law enforcement profes-sionals are included. Thesources used are similar tothose of traditional historians,such as biographies, memori-als, and memoirs, as well aspersonal papers, newspapers,bar publications, and historyjournals.6

43Clark Memorandum

Seeing the Elephant: 12 Western Legal History SourcesG. LeGrande Fletcher | Pioneers and settlers of the American West faced—and resolved—unique legal situations. If you are researching

their legal history, you face various challenges as well. In fact, studying western United States legal history, often called “law for the elephant,”1

sometimes seems like the old fable from India about the six blind men and the elephant.2 In the story, each blind person runs into a different

part of the elephant (leg, trunk, ear, tail, etc.) and then they argue vehemently over whose perception of the whole animal is correct. “Though

each was partly in the right, . . . all were in the wrong” in their interpretations “about an elephant not one of them [had] seen” completely.3

This article is excerpted from G. LeGrande Fletcher’s “200 Nevada Legal History References: A Selective Annotated Bibliography and Introduction,” published in the win-

ter 1998 issue of Nevada Law Review, with earlier excerpt versions published in Westpac News 3–4 (Sept. 1994) and the Nevada Public Lawyer 17–18 (Spring 1995).

Car

olyn

Fis

her

6.Charles F. Wilkinson, Law andthe American West: The Searchfor an Ethnic of Place, 50 univer-sity of colorado law review401–425 (1988).

This article comprises a litera-ture review and observationsby the same author as source 2.

5.Kermit L. Hall, The “MagicMirror” and the Promise ofWestern Legal History at theBicentennial of the Constitution,18 western historical quar-terly 429–435 (1988).

This literature review is by awell-known writer and bibli-ographer of American legalhistory.

1.Jenni Parrish, A Guide toAmerican Legal HistoryMethodology with an Example ofResearch in Progress, 86 lawlibrary journal 105–127 (1994).

This guide is a very usefulintroduction for those whowant to write and research u.s.legal history. It includes exam-ples of regional legal history(southern United States). Don’toverlook this article, despite itsnonwestern legal history focus.

2.Charles F. Wilkinson, The Lawof the American West: A CriticalBibliography of the NonlegalSources, 85 michigan lawreview 953–1011 (1987).

Considered the best westernlegal history bibliography, thisreference does a good job ofdescribing all of the elephant.Wilkinson has his own top-12list on the West at 959–960.

3.John P. Reid, The Layers of

Western Legal History, in lawfor the elephant, law forthe beaver: essays in thelegal history of the northamerican west 23–73 (JohnMcLaren et al eds. 1992).

This reference complementsWilkinson’s bibliography (listedabove as source 2) and updatesit. A fine synthesis of the manydefinitions of western legal his-tory, it is part of an entire sym-posium on western legalhistory. “Law for the beaver”refers to fur companies andwestern Canadian legal history.

4.Articles of Related Interest,western legal history.

This list of “citations to recentarticles from other journalsrelating to western legal histo-ry” is the best way to find cur-rent articles on the subject andhas been published in everyissue of Western Legal Historysince its 1988 inaugural issue.The entire journal is recom-mended.

44 Clark Memorandum

7.David C. Frederick, rugged jus-tice: the ninth circuit courtof appeals and the americanwest, 1891–1941 (1994).

One of the Ninth JudicialCircuit Historical Society’smany fine contributions towestern legal history, thisindexed book offers an excel-lent history of the NinthCircuit’s first 50 years.

8.John P. Reid, law for the ele-phant: property and socialbehavior on the overlandtrail (1980).

This indexed publication looksat concepts of property lawamong travelers in the earlyWest.

9.Law in the West, 24 journal ofthe west 3–72 (jan. 1985).

This collection of eight articlescovers territorial judges,lawyers, peace officers, justicesof the peace, vigilantes,women, and water in the West.

10.Gordon M. Bakken, the devel-opment of law on the rockymountain frontier: civil lawand society, 1850–1912 (1983).

Common law and contract,water, labor, and corporation lawin eight western states—Arizona,Colorado, Idaho, Montana,Nevada, New Mexico, Utah, andWyoming—are examined in thisindexed history.

11.Raymond S. August, Law in theAmerican West: A History of ItsOrigins and Its Dissemination(1987) (unpublished PhD disser-tation, University of Idaho),microfilmed on umi No. 87-16852(Univ. Microfilm Int’l).

This report examines crimi-nal, community property,mining, and water law in theAmerican West, looking atcase law, statutes, actual prac-tice, and demographics.

12.Larry M. Boyer, frontier jus-tice (1979).

This indexed bibliography onwestern legal history lists 176books and 327 articles held bythe u.s. Library of CongressLaw Library.

1

5 6 7 8

9 10 11 12

2 3 4

Vicki M. Huebner | As the assistant director of the Career Services Office, I occasionally have the

opportunity to counsel prelaw students about their legal career options. Generally these students are

most concerned about the type of job they will be able to find after graduation, especially if they want

to practice outside the Wasatch Front.

Two years ago one student in particular caught my attention. She was a gifted young woman who

had done well in school, had participated in several extracurricular activities, and was being heavily

recruited by many law schools. She had been raised in Utah and had done her undergraduate work at

BYU. After graduating from college she had worked as a high school teacher just outside Boston, and

as we talked she expressed her desire to return there. She was particularly interested in knowing

whether the Law School had any connections in Boston and whether she could find a job.

I started to answer her inquiry with my usual sales pitch: describing the outstanding legal educa-

tion at BYU, the efforts the Career Services Office has made to attract an increasing number of

recruiters, and the Law School’s growing reputation. Halfway through my answer she interrupted me

and said, “I know that BYU has a good law school. I just want to know if I can find a job in Boston. Is

this a regional or a national law school?”

Regional v. National

Neither the aba nor theAmerican Association of LawSchools have issued guidelinesdefining a “national” lawschool. Whether a law schoolis considered national orregional has much to do withthat school’s reputation in thelegal and greater community.However, schools that havedeveloped a national reputa-tion do share some commoncharacteristics, including presti-gious faculties, high admissionsstandards, and a wide geo-graphic distribution of gradu-ates. If reputation and theseother characteristics are takeninto consideration, byu has anational law school. In theshort time it has been open,the J. Reuben Clark LawSchool has become one of theleaders in legal education.

Whereas charter classmembers remember Dean RexE. Lee persuading them toattend the Law School, todayScott Cameron, associate deanof Admissions, must deter-mine which of the many quali-fied candidates will beadmitted. In fact, the class of

45Clark Memorandum

Def initions | As a final note, the term “law for the elephant” comes from the mid-19th-century expression “to see the ele-

phant.” Although the phrase “to see the elephant” refers to “gaining experience in the world,”10 it also means going through

hardships, such as crossing the Nevada desert to get to the California gold rush11 or facing military battle with little training.12

Perhaps these sources will help your western legal history research before you reach the point of “seeing the elephant.”

1. Definitions are given in this article’s

last paragraph.

2. John Godfrey Saxe, The Blind Men

and the Elephant, in arthur asa

berger, blind men and elephants:

perspectives in humor 7–8 (1995)

(fable written as a poem).

3. Id. at 8 (emphasis omitted).

4. Source 3 in this article at 23;

source 11 at 2–3.

5. Source 1 at 106.

6. Id.

7. Source 3 at 23.

8. Source 11 at 2.

9. Robert Hornstein, Mean Things

Happening in This Land: Defending

Third-Party Criminal Activity Public

Housing Evictions, 23 s.u.l. Rev. 257,

276 (1996) (how to handle an “ele-

phant-sized task”). Cf. In re edc,

930 f.2d 1275, 1281 (7th Cir. 1991) (“a

mouse was trying to eat an ele-

phant at one sitting”).

10. webster’s third new interna-

tional dictionary 2055 (1968). See

also george p. hammond, who saw

the elephant: an inquiry by a

scholar well acquainted with the

beast (1964).

11. Source 8 at vii–x. See also the ele-

phant as they saw it: a collection

of contemporary levy, they saw the

elephant: women in the california

gold rush xv–xvi (1990); r. r. taylor,

seeing the elephant: letters of r. r.

taylor, forty-niner (John Walton

Caughey ed. 1951).

12. See joseph allan frank & george a.

reaves, “seeing the elephant”: raw

recruits at the battle of shiloh (1989).

“Is This a

Law School?”

or aREGIONAL NATIONAL

1999 had one of the highestcombined gpa/lsat entrancescores in the country, scoringabove students at many otherfine academic institutions.1

Furthermore, the facultywas recently ranked as the28th most productive in thenation.2 Many of these indi-viduals, such as GeraldWilliams, David Thomas,Dale Whitman, MichaelGoldsmith, and RichardWilkins, are recognizednationally and internationallyfor their expertise in the areasof alternative dispute resolu-tion, property law, rico, andu.n. policy making.

Finally, as an institution pri-vately sponsored by a world-

wide church, the Law Schoolproduces graduates who areable to extend their servicebeyond that of students frommany public schools. Our grad-uates find satisfying employ-ment throughout the world3;and, serving in church callings,they assist many more, oftenbeyond their ward boundaries.The members of those earlyclasses, who were persuaded byRex Lee to attend the LawSchool, now serve on the benchand are in leadership positionsin academia, government, pri-vate practice, and industry.With this increasing presence inthe legal community, it is nowonder that the Law School isbecoming better recognizedthroughout the nation.

The Law School’s InfluenceIs Meant to Be Felt Beyondthe Wasatch Front

During that exciting time whenthe Law School was first estab-lished, many people wonderedwhy the Church had decided

to invest time, talent, andmoney in a law school at byu.Despite these doubts, no offi-cial statement of its mission orpurpose was issued, nor has itbeen since. Although manydifferent people have publiclystated reasons for the LawSchool’s existence, Rex Leesummed it up best when heasserted:

So what is the mission of thislaw school? I’m not sure. But I’mconvinced of two things. Thefirst is that it is multifaceted andprobably can’t be reduced to afew words, or even a single sen-tence. The second is that theamalgam of values that consti-tute the mission of this lawschool will become more appar-ent to us over the years. . . .

[W]hat I still believe is thatthe value of this institution—andtherefore its mission—becomesmore apparent as we see whathas come from it.4

What has come from theLaw School? Attorneys edu-cated in an environment thataffirms the restored gospel,who are able to serve govern-ments, industry, societies, andthe Church. To further thisaccomplishment, the LawSchool’s administrative com-mittee has proposed that theschool adopt this missionstatement: “We educate andempower lawyer-leaders in aChrist-centered atmosphere tobenefit families, churches,nations, and the world.” Eachgraduate has much to offer. Aswe look now at a few of ouralumni who are practicing invarious areas, you will noticethat each serves the communi-ty—through either their legalcontributions, their churchservice, or their willingness tobuild up the J. Reuben ClarkLaw Society.

Nikolai C. Ivanov: Bringing aNew Perspective to theBritish Isles

Nikolai Ivanov is a 1995 gradu-ate from the llm program,which provides foreign-trainedlawyers a one-year education inAmerican law. “Although Ireceived my initial legal train-ing in England, I personallyidentify more closely with thelaw school at byu,” he admit-ted. Nik received extensivetraining in commercial lawfrom his British law school.However, he claimed that helearned how to synthesize lawand ethics and find a more bal-anced perspective through histraining at byu.

Nik currently works as asolicitor for Holman, Fenwick& Willan, a large London-basedfirm with 34 foreign offices. Thefirm consists of approximately160 attorneys specializing inshipping, international trade,and commercial arbitration.After obtaining his llm frombyu, Nik spent three months inBulgaria before beginning prac-tice. Thereafter, he worked inthe firm’s London office as atrainee solicitor and recentlyqualified as a shipping litigationpractitioner. He has worked inthe firm’s Piraeus, Greece, officethis year and will soon returnto London.

Nik’s practice focuses onthe areas of shipping and inter-national trade, representingship owners in contractual dis-putes regarding the carriage ofgoods. Although he works foran English firm, only 5 percentof his clients are English, withthe remaining 95 percent locat-ed in other countries, particu-larly Greece, India, and the FarEast. He finds that the mostrewarding aspect of his job isthis international focus. “In anyone day I can find myself

46 Clark Memorandum

T h e c l a s s o f 1 9 9 9 h a d o n e o f t h e h i g h e s t c o m b i n e d G PA / L S A T e n t r a n c e s c o r e s i n t h e c o u n t r y .

ested students and attorneysand showing them a littleSouthern hospitality.

Albert Mailo: Serving HisPeople in American Samoa

If the Law School is measuredby how its graduates assist oth-ers, then Albert Mailo has donemuch to enhance the school’sreputation. A member of thecharter class, Albert has beenpracticing in American Samoa,his native land, for the past 20years. His varied career hasincluded both private and gov-ernment practice. Some of hisnotable accomplishmentsinclude acting as legal counselto former Governor Colemanand being appointed the attor-ney general for AmericanSamoa in January 1997.

Practicing on a small islandof 100,000 citizens with a pro-portionally smaller bar, Albertnotes the collegiality amongbar members. He explainedthat this unique setting allowshim to personally serve theSamoan people. “Through myprofessional experiences, I havelearned to understand peoplewith different perspectives andhave gained access to politicalleaders, and I now have theopportunity to shape the law.Because of my legal training, Ihave been able to affect thelives of many people.”

Although another byu grad-uate worked in AmericanSamoa for a short time, Albertis currently the only LawSociety member there. Whenasked whether it was difficultto be the only J. Reuben Clarkgraduate in this area, Albertresponded, “No.” He statedthat he was able to find goodmentors who were willing toassist him in the early days ofhis career. Additionally, thereare many members of the

Church who share his beliefsand values. He adds that forthose with a sense of adventureand the willingness to work ina different climate and beexposed to different cultures,practicing in American Samoacan be a rewarding career.

John Scukanec: Exploringthe Alaskan Wilderness

“Sometimes I think the bestpart of my job is looking outthe window and seeing thewhales swim up Cook Inlet,”John Scukanec remarked. “Theworst part of my job is the treethat blocks my view of MountMcKinley.” As you may haveguessed, John Scukanec worksin Anchorage, Alaska.

John first arrived in Alaskain 1956 when he was five yearsold, and, except for the time hespent out of state to attend col-lege and law school, he hasremained there ever since. Hestill recalls observing his class-mates from the Law School’scharter class scheduling alltheir interviews during the lasthectic weeks of the semesterand wondering if they wouldreally find jobs in Utah or any-where else. However, John wasnot as apprehensive about hisjob search, since he had alwaysplanned to return to Alaskaafter graduation. Although hemay be living far from Utah, hecontinues to feel closelyattached to the university. Hisson, Jason, plays football forbyu, and he is looking forwardto making a couple of trips toProvo each year to watch himplay. (John and his wife andgolf clubs are already planningto have their trips include thegames in Hawaii!)

Currently an assistant attor-ney general in the Office ofSpecial Prosecutions andAppeals, John argues criminal

their membership. Regardlessof where they attended lawschool, all lds attorneys areinvited to join the Law Society,which exists to encourage highmoral and professional stan-dards throughout the legal pro-fession, serve the professionalneeds of its members, andassist the Law School in fulfill-ing its educational and profes-sional mission.

With regard to his involve-ment with the Law Society,Tony stated, “We would like tosee our chapter continue togrow. We realize that to do so,we must attract not only ldsattorneys within our owncommunity to the organiza-tion but also more byu stu-dents to this area. I feel it wasa great honor to attend byu,and it is incumbent upon meto assist in the placement ofbyu law students.” In an effortto bring more byu students toAtlanta, Tony requested andreceived permission from hisfirm’s hiring partner to recruiton campus last year. He said,“It marked the first year thatwe recruited at byu. In fact, itwas probably the first year wehave recruited at any schoollocated in the West, other thanStanford or Berkeley.” Shortlyafter Tony’s recruiting trip,Alston & Bird extended onestudent a summer clerkshipoffer. Another student whomet Tony during on-campusinterviewing was able, withsome networking assistancefrom Tony and another LawSociety member, Craig Pett, tosecure employment at a differ-ent Atlanta firm.

Tony adds that Atlanta is agreat area to work, live, raise afamily, and, of course, enjoymajor-league baseball. He alsoemphasizes that his colleaguesin the Atlanta chapter are look-ing forward to meeting inter-

speaking with clients in fourdifferent continents, with vast-ly different backgrounds—fromgovernment trade ministers toa carrier’s untrained crew mem-bers,” he said.

In his travels throughout theworld, Nik has found that manypeople are acquainted withBrigham Young University, ifnot the Law School. He feels aduty to enhance the LawSchool’s reputation through hisprofessional conduct, and heespecially feels a duty to repre-sent the Church, particularly inareas where the Church is stillin its infancy. He hopes that thelessons he learned while at byuwill help him attain professionalexcellence and an eternal per-spective.

J. Anthony Jarrett: AddingSouthern Hospitality andCharm to the Law Society

Everyone who knows Tonywould agree that he is an out-standing lawyer with great lead-ership capabilities. Aftergraduating in 1996, Tony beganworking at Alston & Bird, oneof the largest law firms inAtlanta, Georgia. He is current-ly an associate in the tax depart-ment focusing on employeebenefits law and erisa. He wasattracted to Alston & Birdbecause of two J. Reuben ClarkLaw Society members, who hefelt would be wonderful men-tors. He finds his work chal-lenging and enjoys theopportunity to work on com-plex benefits matters.

Since arriving in AtlantaTony himself has become activein the Law Society, which cur-rently has 50 members in themetro Atlanta area. Prior totheir becoming an official chap-ter, members met informallyfor a quarterly breakfast. Nowthey are working to increase

47Clark Memorandum

appeals before the AlaskaCourt of Appeals and itssupreme court. The mostrewarding aspect of his careeris successfully arguing and pre-vailing on appeals in casesinvolving violent crimes againstchildren. He commented, “It isvery satisfying to know thatthese offenders are in a placewhere they cannot harmanother child. But you neverforget the faces of the victimsand the families. You just try tomove on to the next case.”

John presently serves as acounselor in the Alaska BushDistrict presidency. It is one ofthe largest districts in theChurch, covering more than300,000 square miles from theinterior of the state to the tip ofthe Aleutian Islands, and Johnsays it is the best calling in theChurch. He advises those whoare considering leaving theWasatch Front to realize thatthey will be challenged in everyphase of their lives and personalbeliefs. However, he adds, it isonly by being challenged thatyou are able to have the experi-ences needed to strengthenyour testimony, skills, and pro-fessional ethics. And, perhaps,you may just find yourself in anoffice with a nice view!

Jeffrey Siebach: ConductingBusiness in the Far East

Jeffrey Siebach has known hewanted to be a lawyer eversince he was in junior high. Histeachers quorum advisor wasan attorney who brought incases for the teachers to discussduring MIA. As a teenagergrowing up in Wichita Falls,Texas, he never consideredworking oversees, however.Later, serving as a missionaryin Fukuoka, Japan, and livingin Tokyo for an undergraduatestudy abroad program, he

developed a love for theJapanese people and a desire touse his legal talents in that area.

Jeff has spent almost hisentire professional career work-ing in Japan or Hong Kongassisting Japanese clients. He iscurrently working in HongKong as the Asia regional coun-sel for Intel Semiconductor,Ltd. Jeff stressed the importantrole both his mission and hislegal training played in accom-plishing this goal: “My missionand the decision to obtain adegree in Japanese were themost important decisions Imade. They have determinedmy career path thus far.” Inmore than one interview, hesaw the words “speaksJapanese” written across hisresumé. Additionally, his under-standing of Japanese culture wasenhanced by a multidisciplinaryclass taught at the Law Schoolby Walter Ames, a lawyer andprofessor of anthropology.

The Siebach family hasenjoyed the opportunity to liveoverseas, serve in the Church(Jeff is the bishop of his ward),and travel frequently through-out Southeast Asia. “The mostenjoyable aspect of my posi-tion is the diversity of legalissues and geographical areaswithin which I work,” Jeff said.“I work with issues that arisefrom China on the north toNew Zealand on the south toPakistan and Japan and every-thing in between. It is adynamic area of the world inwhich to live, work, and serve.”

Russell and Sarah JeanWatterson: Beginning TheirCareers in Canada

Sarah Jean Tingle, a native ofCalgary, Alberta, Canada,decided to attend the J. ReubenClark Law School for a combi-nation of reasons. Her sister

was accepted into a master’sprogram at byu, and they felt itwould be a great experience toattend graduate school togeth-er. Sarah Jean also felt thatattending the Law School andreceiving a background in u.s.law would be beneficial whenshe returned home to Canada.

During law school SarahJean met and married one ofher classmates, RussellWatterson, a Colorado native.Upon graduation, they werepresented with the challengeof finding two jobs in onecity. Since they both foundpositions in Calgary, theydecided to begin their legalcareers there. They are bothmembers of the Colorado BarAssociation but are currentlypracticing as Students-at-Lawduring their articling year.Russ is working for BennettJones Verchere, the largest lawfirm in western Canada, andSarah Jean is practicing atMilner Fenerty, the secondlargest firm in Calgary.

Sarah Jean is enjoying therotation system at her firm. Shehas already spent three monthsin the financial, property, andpersonal services practice sec-tion and is currently workingwith the insurance, surety, andconstruction litigation group.Russ’ firm does not have a for-mal rotation system, but he isattempting to pursue a varietyof projects that are of interestto him. Because Calgary is thecorporate seat for several largeoil and gas companies, most ofwhom have international oper-ations, Russ has had the oppor-tunity to begin practicinginternational law. His Spanishlanguage background has par-ticularly proved to be an asset,since the firm has clientsthroughout South America.Russ has translated several legaldocuments from Spanish to

English, and this past Octoberhe traveled to Colombia to par-ticipate in the acquisition of anelectrical plant.

As Russ and Sarah Jeanbegin their professional careerstogether, they look forward tobeing admitted to the CanadianBar Association and to themany opportunities that will bepresented to them in the com-ing years.

Our Worldwide Reputation

So, is the Law School a regionalor a national school? Theextrinsic data such as facultyreputation and admissionscores certainly point to anaffirmative answer to that ques-tion. The most important evi-dence, however—the lives ofour graduates—confirms thegrowth, power, and reach ofthis institution. Clearly, the J.Reuben Clark Law School hasa national, even international,mission.

Notes

1. According to the 1996–97 napla

Law School Locator developed by

Dr. Joseph Burns at Boston College,

the combined average undergraduate

grade point average and lsat scores

of byu students placed them in the

second out of 16 matrix cells.

2. Lindgren, James and Seltzer,

David, The Most Prolific Law Professors

and Faculties, 71 Chicago-Kent Law

Review 781, 794. The authors

reviewed articles published in the

top-20 law reviews between 1988 and

1992 to make their findings.

3. At press time, the most recent

employment statistics were for the

class of 1996. Graduates in that class

found employment in 25 states and

two foreign countries. Fifty-four per-

cent of employed graduates found

jobs outside of Utah.

4. Rex E. Lee, “Thoughts After 15

Years,” Clark Memorandum, p. 17.

48 Clark Memorandum

Clark MemorandumJ. Reuben Clark Law SocietyJ. Reuben Clark Law SchoolBrigham Young University