Professor Cole Durham, J. Reuben Clark Law School
In 2010 Professor W. Cole Durham, Jr. received a grant in the amount of $20,000 to help offset the cost of mentoring and training selected law students following their first year of law school. These funds were received and accounted for by the International Center for Law and Religion Studies at BYU (the “Center”) of which Professor Durham is the Director. This grant was to assist law students perform the following functions:
- Engage in original legal research and writing to expand and deepen the treatise on “Religious Organizations and the Law.”
- Gather documents for an online database of legal documents dealing with law and religion for countries around the world.
- Assist with a forthcoming book treating Islam in Europe.
While not paid for with grant funds, the above tasks follow a five-week summer externship under the direction of the Area Legal Counsel of the Church of Jesus Christ of Latter-day Saints. Because of the close relationship between the externship and the research work done at the Center, the two experiences are combined and both are required of the students.
As noted below, these important objectives have either been accomplished or begun, in large measure because of the assistance from the MEG Grant received.
SUMMER EXTERNSHIPS
The Center selected the following eleven students and assigned them to the Area Offices of the Church’s legal counsel as follows:
- Joseph Ballstaedt – Lima, Peru
- Brandon Bastian – Salt Lake City, USA
- Josh Bishop – Buenos Aires, Argentina
- Cecily Couture – Hong Kong, China
- Matthew Cox – Frankfurt, Germany
- Cynthia Hale – Chicago, Illinois
- Eric Jeppsen – Salt Lake City, USA
- Szonja Ludvig – Accra, Ghana
- Alex Mason – Guatemala City, Guatemala
- Rachel Snow – Auckland, New Zealand
- Joseph Stewart – Sao Paulo, Brazil
- Katelyn Trottier – Santo Domingo, Dominican Republic
- Crystal Wong – Mexico City, Mexico
The students worked in these offices for approximately five weeks. They spent the remainder of their summer (approximately 8 weeks) in Provo, Utah where they worked at the Center as full-time employees devoting their energies to legal research and scholarship. The students received an initial orientation by W. Cole Durham, Jr., Director; Robert Smith, Managing Director; Gary Doxey, Associate Director; Brett Scharffs, Associate Director; Elizabeth Clark, Associate Director; and David Kirkham, Senior Fellow for Comparative Law and International Policy. During their orientation, the student fellows received an overview of comparative and international law including instruction on current international religious freedom topics. The student fellows received background on religious freedom protections in the United States and in other countries of the world. They also received orientation on the research methodologies and assignments that they would be working on during the summer.
The highlight of the orientation was the instruction they received from Elder Lance B. Wickman, General Counsel for The Church of Jesus Christ of Latter-day Saints; and the Associate General Counsel of the Church, William Atkin. During this orientation, the student learned about the interrelationship between religious freedom and its direct and indirect impacts on the mission of the Church. The students were also given an overview of the various foreign legal offices of the Church where the students would begin their externships and some orientation as to their assignments there. The student fellows also received orientation on the differences between common law, the legal system handed down to former British colonies, and the civil law, the legal system used in most of the rest of world and having Roman and French Napoleonic roots.
The assignments the students received at each of the Area Legal offices of the Church were varied but all received extraordinary mentoring experience. They were able to work with a highly competent and experienced attorney who taught them both legal and practical skills to become expert practicing lawyers. They were involved in analyzing the laws of many different foreign countries throughout the world and were exposed to numerous legal environments. These are truly unprecedented experiences that few lawyers ever have, let alone while still a law school student.
SCHOLARLY RESEARCH AND WRITING
U.S. Supreme Court Brief
For the first time in its history the Center prepared and filed an amicus brief with the United States Supreme Court in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. This important case involves the religious freedom question of whether churches have exclusive authority under the U.S. Constitution to determine who will be their ministers. The U.S. government argued that churches should be subject to standard employment laws that forbid discrimination and that no special constitutional protections apply to church employment of ministers.
Lead counsel for the Lutheran Church asked our Center to file an amicus brief that would draw on our international experience in religious freedom matters. Because we only had a short amount of time before the due date of the amicus brief, the Center engaged the student research fellows to assist in the preparation of the brief. With the able assistance of these students, we were able to research the laws related to church autonomy in ministerial hiring in dozens of countries from around the world. As a result, we were able to compile a significant brief that argues that if the Supreme Court sides with the government’s position, it would be turning its back on the Founding Father’s vision of a land in which churches operate free of government interference. Ironically, the U.S. government’s current position not only repudiates the Founder’s break with European and English models of state control over religion, but it also goes against the tide of most European countries that have since adopted the U.S. view that churches should be autonomous from the state. Ultimately, the Supreme Court will decide this matter next spring or summer. We are grateful we could, with the explicit approval of both BYU and the Church, represent the interests of churches everywhere in attempting to keep government out of the sensitive decisions regarding who should be a church minister.
Importantly, for purposes of this grant request, the work we performed on this brief could not have been completed without the hundreds of hours of student research work. While this was an unexpected project, having the research grant available helped make our participation before the U.S. Supreme Court possible.
Treatise
After their externship experience, each of the Summer Research Fellows spent the balance of their summer involved in an intensive legal research and writing curriculum. This experience put the Summer Research Fellows into direct and frequent contact with Professors Durham, Smith, and Clark. As a result, the students were well supervised and mentored in their various projects. All of the students met frequently with the professors and management of the Center.
As a result of the students’ efforts, the Center was able to complete an update for the 4,000-page treatise titled “Religious Organizations and the Law.” Their assistance was important because the treatise was refined and expanded in preparation for a new edition that is expected to be published in 2012.
The assignments of the summer fellows are listed below:
Chapters | Assignment |
1 – Uniqueness of Religious Organizations under the Law | Cynthia Hale |
2 – The First Freedom: Religious Freedoms Guaranteed under the Constitution and Church Autonomy Doctrines | |
3 – Organizational Choices of Churches and Other Religious Organizations | Joseph Stewart |
4 – Formation of Religious Organizations: Corporations, Associations and Trusts | Szonja Ludwig |
5 – Fiduciary and Management Duties of Directors, Officers, and Trustees | Eric Jeppson |
6 – Risk Management | Cecily Couture |
7 – Organizational Transformations: Mergers, Divisions and Dissolutions | |
8 – Religious Organizations in Bankruptcy | |
9 – The Church as an Employer and Religion in the Workplace | |
10 – The Churches in Court: Fundamentals of Litigation | Heath Becker |
11 – Modern Liability Claims Facing Churches | Joseph Ballstaedt |
12 – Religious Influence in Public and Private Education | Rachel Snow, Katelyn Trottier |
13 – Church Sponsorship of Social Services and Health Care | Crystal Wong |
14 – Marriage and Family Life | Brandon Bastian |
15 – Religious Land Use | Matthew Cox |
16 – Immigration | Josh Bishop |
17 – Taxation and Exemptions | Alex Mason |
18 – Financing Churches | |
19 – Intellectual Property |
Due to the significant help of the student fellows, the 2011 edition of “Religious Organizations and the Law” has been extensively updated. In addition to the thousands of new citation references and tens of thousands of editing changes throughout, the research fellows also helped add major new sections including the following:
- Why religious organizations are unique
- Religion’s role in major U.S. events
- Religion in the United States today
- Religious organizations and political issues
- Constitutional implications of state enforcement of charitable trusts
- Chart on the business judgment rule for each state
- Introduction to risk management for churches
- Identification and management of legal risks
- Choosing the proper legal entity
- Reducing board liability
- Financing risk management
- Fiscal management risks
- Risks due to third-party use of church property
- Liability for actions of volunteers and employees
- Serving at-risk populations
- Immigration related risks
- Choosing insurance
- Crisis management
- Financial records in tax disputes
- Church members’ right to inspect financial records
- Punitive damage awards and compelled disclosure of financial records
- Could voluntary disclosure of some financial information open the door to the compelled disclosure of additional information?
- Sexual abuse involving children – Theory of negligent hiring, supervision, and retention.
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – The First Amendment as a defense
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Charitable immunity as a defense
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Breach of a legal duty
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Breach of a legal duty – Negligent hiring
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Breach of a legal duty – Negligent supervision and retention
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Breach of a legal duty – Negligence generally
- Sexual abuse involving children – Theory of negligent hiring, supervision, or retention – Proximate Cause
- State chart on accommodations of statute of limitations for civil claims of child abuse
- The need to teach about religion in public schools
- Supreme Court interpretations of First Amendment neutrality support teaching about religion
- Establishment Clause jurisprudence supports teaching about religion
- Obstacles to teaching about religion in public schools
- Prayer in public schools – School board meetings
- Student religious expressions in public schools
- Student religious expressions in public schools – The classroom context
- Student religious expressions in public schools – Convocations and graduations
- Student religious expressions in public schools – Student religious dress
- Student religious expressions in public schools – Student distribution of religious literature
- Student religious expressions in public schools – Accommodation of student religious practices
- Student religious expressions in public schools – Accommodation of excused absences for religious holidays
- Teachers’ religious expressions in public schools
- Teachers’ religious expressions in public schools – Academic freedom and religious expression
- Teachers’ religious expressions in public schools – Teachers’ religious dress
- Teacher religious expressions in public schools – Accommodation of teacher religious practices
- Scripture-based electives
- Cooperative programs between public schools and religious communities
- Religious use of public school facilities during non-school hours
- Access to students by outside groups
- Distribution of flyers from outside religious groups
- Religious charter schools
- Curriculum requirements for private schools
- Employment practices and the ministerial exemption
- Buildings and facilities
- Separation of churches and social services and health care
- Financing social services without government funding
- Religious concerns over the Patient Protection and Affordable Care Act
- Performing Marriages
- Custody of Children
- Inheritance
- Status of same-sex marriage and its impact across the states
- On the Defense of Marriage Act (DOMA)
- Scope of land use planning for religious organizations
- Zoning
- Introduction to immigration impacts on religious organizations
- Religion, law, and immigration – Tensions in United States history
- Constitutional provisions: Plenary power over immigration
- History of United States immigration law
- Enforcement agency: The history of USCIS
- The current immigration regime – Family preference
- Current immigration regime – Employment preference
- Current immigration regime – Refugee preference
- Current immigration regime—Special categories
- Possible protections from immigration enforcement: Religious Freedom Restoration Act (RFRA)
- The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
- Temporary Protected Status (TPS)
- Bars to Asylum – Generally
- Bars to Asylum – Prosecutor bar
- Bars to Asylum – Serious non-political crimes/violent felonies/ terrorism
- Bars to asylum – One-year bar
- Bars to asylum – Previous asylum applications
- Bars to asylum – Firm resettlement/safe third country
- Other immigrant services by churches – Victims of domestic violence
- Other immigrant services by churches – Family reunification
- State and local immigration initiatives
- Chart of state immigration laws
- State immigration laws affecting employment
- Chart of state immigration laws affecting education and public services
- Sales taxes
- Use taxes
- Sales and use taxes and religious organizations
- Religious organizations
- Chart of purchase exemptions for religious organizations by state
- Religious organizations as sellers
- Chart of sales exemptions for religious organizations by state
The students performed all of these significant changes by working over the summer as research fellows. Their work was truly outstanding, making the latest edition of the treatise its best ever.
SUMMARY
This past year was an outstanding year for our summer research fellows. They received important mentoring as they performed extraordinary research work that allowed the Center to file a very important amicus brief with the U.S. Supreme Court and allowed Professors Durham and Smith to update “Religious Organizations and the Law,” a 4,000-page treatise for publication. Their work was remarkable and the learning experience they gained from these significant projects should assist them throughout the remainder of their legal studies and throughout their professional careers.