Does Religion Compromise Fairness for Judges & Jurors or Are We Still Bigots?

I monitor, pretty heavily, all state and national media relevant to 'judicial bias', 'judicial fairness', 'judicial corruption', etc. I came across this story this week at MormonMatters.org by Mr. Jeff Breinholt, a lawyer for the Department of Justice, (via my Google Alert, great tool). It struck my interest given that it brings religion into 'judicial bias', an often 'left out' part of the discussion. The article brings up a discussion of whether Mormon's should be kept out of the judiciary & the jury. The focus of the discussion appears to come from the perspective of a Mormon worshiper and seems to attempt to bring up some issues for thought regarding what religions can be grounds for disqualification and recusal. The article does not really lay down an opinion on whether the recusal or disqualification for bias should occur on these grounds, overall.

Mormons In The Nevada Legal & Governmental Communities

Since we have a significant Mormon population here in Nevada, I thought it might be somewhat relevant to bring this up. I'd even say that our legal & government community here in Las Vegas is pretty highly 'Mormon'. Some are in jail for taking bribes, some are honest and service oriented, some are cheating on their wife(s) at resorts in Utah and others are shoplifting. Pretty negative view, huh. Well, from my experience with Mormons, which is a lot, most all of them, that I know, are going to their churches a lot, coaching their kids' sports, spending time with their families, serving the poor at shelters, always going camping with their scouts and always going to their temple. Oh, and they ALL vote.

So, why does Nevada (specifically Las Vegas) have such a large Mormon population in the legal and government arena? I don't know. But, it likely has something to do with Las Vegas being a Mormon Settlement from the 1800's, Nevada being Utah's neighbor, and two top tier law schools being just north on I-15 in Utah producing several hundred skilled law students per year, before and after the start of our UNLV Law School. It also may have something to do with their involvement with their families. If you love your family, you will love your community, so you will want to do something about it . . . if you are not lazy, that is. For that matter, you don't need to be Mormon to care about Nevada, obviously, but Mormons seem to care as much as anyone.

American Minority Religions & Their Members That Govern

Now, we all know that many of our judges here in Nevada are Mormon, as well as other non-Protestant religions. Do you know which ones? If you do, yet you don't know which ones are Jewish, which ones are Catholic, which ones are Muslim, but you know which ones are Mormon, maybe you have a problem (maybe you don't). In all the years I've been practicing law, though, the only two religions that I've heard people discuss when identifying a judges' religious affiliation are Jewish & Mormon. It does not matter if they are participating parishioners or not, they are identified.

My question to all of you . . . Why? American Minority Religions (all non-Protestant) are a very integral part of the fabric of our American Communities. You can lump all "Christ-believers" in together as Christians, sure, but I don't think that is fair. Catholics/Protestants/Mormons, they all 3 believe in Christ as God, but are all as different from each other as they are collectively from Judaism or Islam.

Ever since our country was founded, primarily by White, Western European, Protestants, there has historically always been a certain amount of persecution against the American Minority Religions. All of them, just to varying degrees. Yes, that's called 'bigotry'.

Given that virtually every person that left their foreign homeland to emigrate to the 'West' was looking for opportunity, freedom (religious or otherwise) and the chance to make their fortune, it was inevitable that our religious diversity would grow. It has never been more diverse than it is today & that should be celebrated. As time has moved on, though, we have eventually over come some of the resultant bias/prejudice created by our many different cultures, races & nationalities. From a religious standpoint, we elected our first Catholic U.S. President in Kennedy and more recently our First Party-Affiliated Mormon U.S. Presidential Candidate in Romney. Protestant Presidents are a dime-a-dozen.

While gender and race have become less and less of a divisive issue (when compared to our social history), it appears that for the vast majority of the U.S. religion is fast becoming the dividing line, more and more of a divisive issue. So in an era of, what is purported to be, 'great tolerance', we have our first African-American President in the same year that there are anti-Mormon & anti-Catholic marches on Temples & Parishes. What is going on & does that influence or reveal itself in the Courts?

'Bias BY' or 'Bias AGAINST' The American Minority Religions

This particular statement in the article is what sparked my interest. As well, the topic of 'judicial bias' is my favorite wine & cheese chat. In discussing and citing case law that relates to situations where Mormon Judges and Jurors were disqualified for their faith, Mr. Breinholt states,

"The judge cases go back over 50 years and involve allegations that LDS judges could not be fair in disputes involving Fundamentalist Mormons, the Howard Hughes will, the Equal Rights Amendment, corporate disputes involving the Mormon Church, cases involving Mormon victims, and criminal prosecutions involving black people, non-Mormons, drinking and rape. Most of these cases were in Utah, Idaho and Nevada." (Source. Emphasis added).

Mr. Breinholt identifies, with citations, that he has found (searching back 50 years) the following results regarding judicial recusal and juror removal due to an affiliation with "American minority religions":

• "[He finds] 35 cases in which it was alleged that Mormon (officially Latter-day Saints) participants as neutral observers in the legal system could not be fair." (19 claims regarding Mormon judges & 16 cases regarding Mormon jurors);
• He found 32 cases involving the Jehovah’s Witnesses;
• "[He] could only find 12 Catholic judge disqualification cases, with the first one coming in 1990" and he did not appear to have done a search for juror issues;
• "[He] found one [1] case involving a Seventh-Day Adventist prospective juror";
• "[He] did not find a single case involving the Christian Scientists";
• Regarding other mainstream 'Protestant' religions, when these cases did exist, Mr. Breinholt claims these rare cases based their precedent upon Mormon cases.

What does this mean? At this point, I'm not real sure whether or not the research is thorough enough to draw any solid conclusions. However, if these are the only cases for the entire country, there would certainly be a trend against Mormons & Jehovah's Witnesses. However, since Mr. Breinholt's research is nation-wide, ignoring his conclusions does not appear to be plausible either. If these trends are accurate, we are fast approaching proof positive that we can't get over the age-old conflict: religious bigotry.

Historically, I believe a case can be made that Catholics & Jews have struggled for acceptance in many areas throughout the U.S., within Protestant-based communities. Even Lutherans have not been, historically, mistreated as much as the Catholics and the Jews in our country. But for some reason, we appear dismissive of the mistreatment toward the Mormon community, to a degree that is appalling, in my opinion. Why?

Writing this made me pick up the phone and call a Mormon friend of mine. He informs me that the Mormon religion is "the only religion that had an 'extermination order' against its people, signed by the Missouri Governor." I didn't believe him . . . until I found The Handwritten Order (1838) and the the Rescission Executive Order 44 (1976). Really? 138 years? (text of both Orders) In other words, it was legal to kill Mormons, as long as you were forcing them out of the state. How's that for persecution! No wonder they all moved out to Utah. I believe the Native American's are the only other community that has had such "open" governmental action (excluding all issues relevant to 'slavery'). Even during slavery, though, there was accountability for killing a slave.

I hope you understand my point, though crass. We seem to have at least a little history of "picking on the Mormons." This does not seem to have stopped. The recusals and disqualifications sought when compared with the size of the overall population of the Mormons is lop-sided. It does demonstrate, at least, a suggestion of bigotry.

However, there is a counter argument here. Mormons truly can't be trusted to separate their religion from our laws. That is the implication, right? If recusal is sought based upon 'religion', the claim can only be that this person can't separate the law from their religion. If we go down that road, we are all in trouble. This should not be allowed.

Looking at the above list, it does looks like we've added the Jehovah's Witnesses' to the list of those to 'pick on'. Mr. Breinholt states that, "This could be expected because . . . there are some who view Jehovah’s Witnesses as having a religious obligation not to serve as jurors. Perhaps there are not enough Jehovah’s Witnesses who become judges for their disqualification to be sought." Mr. Breinholt also notes that, Jehovah's Witnesses, "don’t serve in the military, salute the flag, or vote." So, in this regard, the religion requires the members to chose religion to the exclusion of the laws. I can understand trepidation in their regard.

However, as my friend pointed me to, with regard to the Mormons' dedication to the rule of law, they state clearly in a list of religious tenants called their Articles of Faith that "We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law." (#12). Seems pretty clear to me, Mormons, like most all other religions, have members that can separate the law from their religion. As a result, these attempts at recusal and disqualification looks more like 'bigotry against' than it does 'bias by' the Mormons.

Concluding Thoughts

Mr. Breinholt concludes that his, "strong sense is that parties seek to disqualify Mormon judges on religious grounds more than they do judges from other religions, even the big ones like the Catholics. Why do I think this? It is because those few other cases I stumbled on – involving the attempted disqualification of Jewish, Catholic and Episcopalian judges – generally cite cases in which recusal is sought of Mormons. If there were other cases involving the religion in question, they presumably would have found and cited them, since it would have been more persuasive authority. The paucity of these cases forced them instead to cite the Mormon cases."

While I'm inclined to agree, his interesting point is based upon a kind of simple logic that may not be exhaustive enough to sustain it the conclusion. However, it looks like he saw me coming, as he continues his reasoning. He argues that the size of the Catholic church dwarfs that of the Mormon church, though "only 12 Catholic judge disqualification cases" exist and there are 19 cases in which Mormon judges are challenged. If true, he makes a very legitimate point here. In his words, "The Mormons, it seems, have even the Catholics beat on this score."

So, is it the 'bigotry towards' the "American Minority Religions" that is at work here or is it the 'bias of the members' of the "American Minority Religions" that causes disqualification and recusal challenges?

I don't have enough confidence in our overall society to choose the underdog as 'causing the problem'. I think religious bigotry is the last bastion of American high-mindedness enabling us all to continue to lie to ourselves that 'hate is OK'.


FYI, here are the Nevada & 9th Circuit Cases on Topic (cited by Mr. Breinholt):
Hayes v. Forman, 93 Nev. 490, 568 P.2d 579 (Nev. 1977)
Snyder v. Viani,112 Nev. 568, 916 P.2d 170 (Nev.,1996)
U.S. v. Kahre, , 2007 WL 2110500 (D.Nev. 2007)
U.S. v. Kahre, 2008 WL 5246034 (D.Nev. 2008)
U.S. v. Wolters, 656 F.2d 523 (9th Cir. 1981)
Seagrave v. Gomez, 974 F.2d 1343 (9th Cir. 1992)
Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 1995 WL 649927, 95 Cal. Daily Op. Serv. 8594, 95 Daily Journal D.A.R. 14,830 (9th Cir. 1995)

**(In an effort to recognize political correctness, even though I think it is usually a bunch a 'hooey', I'm referencing each religion by its common colloquial name, e.g. Jew, Mormon, etc. Please inform me if the references I make are offensive. That is not my intention & I particularly don't want to detract from the topic by the use of offensive or derogatory designations.).