Professor Cole Durham, J. Reuben Clark Law School

Last year, Professor Cole Durham 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 who perform the following functions:

Serve as a summer extern under the direction of the Area Legal Counsel of the Church of Jesus Christ of Latter-day Saints in one of the area legal offices of the Church.
Engage in original legal research and writing to expand and deepen the treatise Religious Organizations and the Law
Assist with a forthcoming book treating Islam in Europe.
Gather documents for an online database of legal documents dealing with law and religion for countries around the world.

As noted below, these important objectives either 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:

Keith Barlow – Salt Lake City, Utah
Heath Becker – Guatemala City, Guatemala M. Preston Gardner – São Paulo, Brazil Kristina Hardy – Mexico City, Mexico Bryan Holm – Auckland, New Zealand George Monsivais – Salt Lake City, Utah Rebecca Nelson – Lima, Peru
Lori Olsen – Johannesburg, South Africa Julie Slater – Accra, Ghana
Robert Stratford – Hong Kong, China Jordan Teuscher – Kyiv, Ukraine
Adam Thompson – Auckland, New Zealand Elizabeth Willian – Frankfurt, Germany

These 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 Cole Durham, Director; Robert Smith, Managing Director; Gary Doxey, Associate Director; Brett Scharffs, Associate Director; Elizabeth Sewell, 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 is the instruction that 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. They also gave the students an overview of the various foreign legal offices of the Church where the students would be working 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 that 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

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, Sewell, and Christine Scott, Director of Publications of the Center. 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 two- volume treatise titled Religious Organizations and the Law. Their assistance was important because the treatise was expanded from 11 to 19 chapters. This expansion is in preparation for a new edition of the treatise to be prepared for 2011.

The assignments of the summer fellows are listed below:

Due to the significant help of the student fellows, the 2010 edition of Religious Organizations and the Law has been extensively updated and restructured. In addition to the expansion of the treatise from 11 to 19 chapters and the addition of new materials in already existing sections of the treatise, the research fellows also helped add major new sections including the following:

• Legal definition of “religion”
• Legal definition of integrated auxiliaries and entities related to a church Uniqueness of a religious organization compared to for-profit and nonprofit entities
• Separation of church and state
• Free Exercise Clause v. Establishment Clause
• Church autonomy
• Statutory benefits and protections to churches
• Free exercise of religion during colonial times
• Free exercise in the new union
• Application of free exercise to the states
• Free exercise after Employment Division v. Smith
• The hybrid rights doctrine after Smith
• The Religious Freedom Restoration Act
• Free exercise after Boerne
• International religious employment law
• Understanding why church’s avoid litigation
• Recent erosion of the church autonomy doctrine and its impact on litigation Employment discrimination issues faced by religious organizations
• History of same-sex marriage and religious organizations
• The Equal Protection Clause and same-sex marriage
• Legal challenges to the federal Defense of Marriage Act (DOMA)
• The Religious Land Use and Institutionalized Persons Act (RLUIPA)
• RLUIPA’s substantial burden test
• RLUIPA’s equal terms test
• Challenges to the political activities test and the doctrine of unconstitutional conditions
• Citizens United v. Federal Election Commission: Introduction
• Citizens United v. Federal Election Commission: Background, history, and holding
• Citizens United v. Federal Election Commission: Potential effect on the political activities test of §501(c)(3)
• History of the public policy requirement for tax exemption
• The definition and creation of federal public policy in the context of the same-sex marriage debate
• Applying state law as a source of public policy in the same-sex marriage debate Qualifying as a minister for federal tax purposes
• The Parsonage Exclusion
• History of the Parsonage Allowance: Pre and Post Warren
• Policy behind the Parsonage Exclusion
• Arguments opposing the Parsonage Exclusion
• History of religious property tax exemptions
• The unique nature of religious property tax exemptions
• Sources of religious property tax exemption law
• Qualifying property and implicit use requirements
• Qualifying use requirement for property tax exemption
• Judicial trends in religious property tax exemptions
• Legislative trends in religious property tax exemptions

In addition to the many new materials, research fellows reviewed the entire corpus of the law to add hundreds of new case citations as well as scores of citations to leading academic literature that provide additional resources to the attorneys representing churches across the United States. 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.

In addition to this work on the treatise, Bryan Holm, Rebecca Nelson, Elizabeth Willian and Julie Slater provided valuable contributions to the forthcoming work, Islam in Europe: Emerging Legal Issues – Critical Views. During the summer, these students edited numerous articles that have been converted into chapters. Each of these students edits two to four chapters, prepared synopses of each chapter, and did limited research needed to augment the scholars’ original work. This work was necessary to submit the proposed manuscript to the U.K. publisher, Ashgate. Since then, Ashgate has accepted the manuscript and the proposed publication date is 2011.

Elizabeth Willian and Julie Slater also assisted David Kirkham in the preparation of two academic conference papers delivered in Austria and Romania. One of the papers discussed the treatment of Muslims in Europe in cases that have come before the European Court of Human Rights. The other paper treated the causes and consequences of religious discrimination. The work of these students was invaluable to the preparation of these papers.

Finally, Keith Barlow and Robert Slater performed valuable research and writing help. Keith prepared a draft analysis titled Religion and the Secular State: Religious Education of the Youth. This work was used in preparing a paper for a presentation in Europe during the summer of 2010. Robert edited the Mandarin Chinese translation of a casebook titled Law and Religion: National, International, and Comparative Perspectives. This translation was used in a three- week seminar with leading academic scholars that our Center co-sponsored with Peking University in Beijing. Because Robert is fluent in Chinese, his efforts to prepare this manuscript were extremely helpful.

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 Professors Durham and Smith to update Religious Organizations and the Law, a 3,500 page treatise for publication. The students’ work also allowed Professor Durham and Dr. Kirkham to prepare the manuscripts from numerous authors into the book Islam in Europe: Emerging Legal Issues – Critical Views which will be published in 2011. These student performed valuable research on a variety of other research projects which were used in speeches at academic conferences and an important seminar in China. Finally, these students received important practical mentoring from international lawyers serving the Church in many foreign lands around the globe.