LDS Lawyers and the Public Square

I am grateful to be with you this evening. I have always enjoyed being with lawyers. I’m appreciative of that introduction by Elder Bruce C. Hafen. We have been friends for many years and currently have offices adjacent to each other. I appreciate his remarkable capabilities, his humor, and his friendship and thank him for that generous introduction.

I am sure each of us here has a reason we decided to attend law school. The genesis of my own decision to become a lawyer came from two sources. The first was my father. His uncle, David S. Cook, had been a successful attorney and had created a favorable disposition in my father toward the law. (Incidentally, this uncle had roomed with Albert E. Bowen at the University of Chicago Law School. Elder Bowen, of course, was later an apostle.) In addition to his uncle, my father had utilized lawyers in his various businesses and as he used to say, in a tone that made it clear he wasn’t serious and with a big smile, “Lawyers have a license to steal.” To be completely fair, he used the same language to describe doctors. I suppose that viewed from the competitive business world in which he was involved, the law seemed like a pretty safe haven. My guess would be that most of us here would not concur with my dad’s assessment, particularly with the difficult economic times many lawyers are experiencing today.

The other person who influenced my decision to become a lawyer was my second mission president, Elder Marion D. Hanks, who is also a lawyer. In a serious conversation I had with him near the end of my mission, I told him the educational options I was considering. He told me that he thought I should pursue a legal education. From that very moment my decision was made. It wasn’t just because he said it, but because I knew he was right.

While I thoroughly enjoyed the practice of law, I did not feel inclined to influence our children toward any particular occupation. Nevertheless, two of the three did become lawyers. They are both here this evening. My daughter, Kathryn, who after a 14 year hiatus raising four wonderful children has returned to part-time legal practice. My son, Larry, practiced for a time on Wall Street for Sullivan and Cromwell, but is now a partner in a private equity firm.

I should also mention that I have two first cousins who are distinguished lawyers, and they are both here. One is Judge Dale A. Kimball who is a U.S. Federal District Judge here in Salt Lake; and the other is, Kimball Johnson, who is the Division Chief of Natural Resources in the Utah Attorney General’s Office. Kim’s son, David is attending the University of Utah Law School and is here tonight with some of his classmates.

As I began preparing for this talk and paying more attention to what is being said today about lawyers and the law, I was interested in an article in the January 12, 2009 issue of Forbes Magazine and in a subsequent account in the New York Times by Evan R. Chesler. Mr. Chesler is the presiding partner at Cravath, Swain & Moore, and the Forbes article was entitled, “Kill the Billable Hour,” with a subheading of “Lawyers should bill the way Joe the Contractor does.” ¹ I have to admit that there were three aspects to my interest in his statements. First, I have always had a soft spot in my heart for the Cravath firm. In 1966 when I graduated from law school as a new lawyer, Cravath increased the “going rate” by a few hundred dollars to a magnificent sum exceeding $8,000 per year for beginning lawyers. My new firm decided to match that rate and I was the grateful beneficiary of what at that time seemed like a significant increase. Lest you think we were starving to death, very adequate homes could be purchased for 20 to 30 thousand dollars in those days. Second, Mr. Chesler described himself as the presiding partner of his firm. That is new terminology to me. When I was practicing, the term was managing partner. But even then it seemed like an oxymoron. Managing lawyers, an almost impossible task, has always resembled the oft quoted comparison to herding cats. Third, and most important, anything that would take away the burden of billable hours would constitute an improvement to the legal profession.

When I was a second year law student at Stanford University, a visiting professor arrived to teach first year Constitutional Law. His name was Arvo Van Alstyne, and he was then a law professor at UCLA. He had also been president of the Los Angeles California Stake. He was teaching Constitutional Law to half of the first year class. The Constitutional Law teacher for the other half was Gerald Gunther, who had clerked for both Judge Learned Hand and Chief Justice Earl Warren. He had been my teacher the previous year.

Professor Van Alstyne, in the first few days of class, informed his students that he was a committed member of the LDS Church. He explained to them that as part of his faith he believed that the United States Constitution was divinely inspired. He said he wanted them to know about his personal beliefs and predilections. He recognized that the students would need to reach their own conclusions.

This announcement made quite a stir at the law school and engendered both discussion and humor. The students would inquire of each other, “Do you attend the inspired Constitutional Law Class or the uninspired Constitutional Law Class?”

My intent here this evening is not to deliver a scholarly discourse on the U.S. Constitution. However, before I speak to the two concepts I do want to cover, a historical overview of how some have viewed the inspired aspects of the US Constitution might be interesting. Both President J. Reuben Clark and Elder Dallin H. Oaks, two apostles who had previously been eminent lawyers, share a common view of our understanding that the Constitution is divinely inspired. Neither of them has seen every word of the Constitution as being inspired. Elder Oaks has said, “Our reverence for the United States Constitution is so great that we sometimes speak as if its every word and phrase had the same standing as scripture.” He continues, “I have never considered it necessary to defend that possibility.” ² President J. Reuben Clark enunciated a similar view in an address given in 1939. ³ I concur with their assessment.

President Clark saw three elements of the Constitution as being particularly inspired.

First is the separation of powers into three independent branches of government. Second is the Bill of Rights’ guarantee of freedom of speech, press, and religion. And the third is the equality of all men before the law.

Elder Oaks, while concurring with President Clark on these three, also includes the Federal System with the division of powers between the nation as a whole and the various states and the principle of popular sovereignty. The people are the source of government.

I think most of us would agree with President Clark and Elder Oaks that these incredibly significant fundamental principles elegantly combined in the Constitutional documents are indeed inspired and coincide with doctrinal principles in our scriptures. It does not require detailed analysis of the Constitution to see that these five basic fundamentals have been a great blessing to The United States and were necessary as a precursor to the restoration of the gospel of Jesus Christ.

I understand that some who are listening by satellite are in foreign countries. Many of the above principles had their antecedents in legal doctrines and philosophies established in Europe and particularly in Great Britain.

My purpose this evening is to let the founding US documents - The Declaration of Independence, the Constitution, and the Bill of Rights frame just two concepts that I will discuss in broad, practical terms. I believe the concepts are as applicable internationally as they are in The United States.

The first is the pursuit of happiness. Much has been written about the meaning of the words “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty, and the pursuit of happiness.” ⁴ The British political philosopher, John Locke, is credited with those enduring concepts. George Mason, Thomas Jefferson, and other founding fathers weighed into the writing of this language. With respect to the word happiness there was at least some element of protecting possessions and property. For others the concept of safety was also important. But it is clear that for the authors of the Declaration “happiness was something more than material well-being and the possession of property. One writer described it this way:

Happiness has to do with a life well lived, or a good human life as a whole; it involves the achievement and practice by a person of such virtues as courage, decency, and charity, virtues that are entirely within a person’s own power to attain. ⁵

I have been amazed by the number of articles in the last two or three years that have focused on happiness. It is clear for instance that rich nations economically aren’t necessarily happier than poor ones. Also people at all income levels say they would be happy if only they made more money. The message of many magazines today is we’re never quite happy enough.

Elder Oaks and I were in Beijing, China a little over a year ago. An editorial in the China Daily was entitled, “Finding the Right Path to Happiness for All.” The editorial indicated that despite significant increases in material wealth, people don’t feel any happier. A few paragraphs from this Chinese newspaper editorial might be interesting to you.

(Quote) Growing stress from work and study is making many people blue, as high pressure and long hours offset the happiness brought by economic well-being. This is also true for school children. Often spoiled, these little emperors and empresses don’t smile as much as they should, weighed down by excessive homework and tests. They also play less and are physically less fit compared with their parents’ generation.

While the divorce rate soars…the outcome is often damaging – especially for young children.

Deteriorating morality and manners are also getting people down. Loneliness is also playing a role, as interpersonal relationships become more complicated and people living in urban concrete jungles lose their sense of community.

Focusing on gross domestic product growth is not the right path to happiness. ⁶ (End of Quote) (China Daily, Nov. 2007)

This debate about prosperity and happiness has been going on for a long time. The great Anglican theologian, Fredrick W. Farrar, writing in The Life and Works of St. Paul, was speaking of the grandeur of ancient Greece particularly Athens. He asserted that those who believe government, culture, philosophy, business, science, or other worthy pursuits, can bring permanent happiness are mistaken. He stated: “…had permanent happiness….been among the rewards of culture; had it been granted to man’s unaided power to win salvation by the gifts and qualities of his own nature, and to make for himself a new paradise…then such ends would have been achieved at Athens in the day of her glory.” ⁷ He concluded that they definitely were not achieved.

The relationship between happiness and religion which was acknowledged by Farrar has been evident to almost all who have studied it. John Tierney, writing in the New York Times, December 30, 2008 stated, “Researchers around the world have repeatedly found that devoutly religious people tend to do better in school, live longer, have more satisfying marriages and be generally happier.”

The Churches’ doctrine leads to true happiness and I will discuss that later. But there are issues relating to happiness with which many people struggle.

Almost all studies of happiness indicate that the relationship between how we think we are doing compared to others is more important than our actual circumstances.

Many years ago a very wise consultant helped me understand this in a way that was meaningful to me. I was running a healthcare system and had just been called as an Area Authority. I had just returned from a stake conference in San Diego and was feeling that the talks I had given were less meaningful than I would have liked them to be. There were some merger issues in the business that the consultant was helping us resolve.

He took me to a white board and went through the following analysis. He asked what are some of the skills that are inherent in what you are trying to do? We then listed those skills on the white board. I don’t remember them exactly, but some of them were: giving talks, providing inspired leadership, working with others, executive administration, delegating, and other similar skills. He then asked me to list the individuals that I had met in my lifetime who were the very best in each of the designated areas. I was surprised that in many of them I knew immediately who I thought was the best. For instance I knew that my mission president, Elder Marion D. Hanks was as good a speaker as I had ever encountered whether it was a prepared talk or one spoken extemporaneously. The quality of content and delivery was exceptional.

With respect to delegation I immediately identified a former stake president, David Barlow. He was the president of the Ortho Division of Standard Oil, now Chevron, and he was absolutely spectacular with respect to delegation. I can still remember as a new high councilman assigned to the youth reporting to him on some challenges that I thought our young people were experiencing. He immediately concurred with my assessment and then asked, “What is the solution?” I had to admit that I had thought deeply about the problem, but had no solution as yet to propose. He helped me define what I was looking for and then set a specific time for us to meet to discuss a proposed solution which I was expected to bring to the next meeting. His success in both Church and business was most remarkable, and a significant part of that was his unusual ability to delegate and hold people accountable.

The consultant had me list additional people for each of the other skills or talents. Most of them I was able to identify very quickly. As I recall there were approximately ten of these

skills. He then listed them across the top of the white board and asked me, using an “A,” “B,” “C” grade formulation to identify how each of these super stars performed in the other nine areas. To my great amazement, I realized that no one was a straight A across the board. 

The consultant then pointed out that what each of us do in life is compare ourselves with the A+ performers in each category that we value, and then we feel inadequate and unsuccessful in what we are doing. As the studies I have mentioned indicate, when we feel unsuccessful we feel unhappy.

You might ask, why am I sharing this with you? Law and the process of becoming a lawyer are very competitive. The respect for credentials can reach an inappropriate level where they are virtually “idols.” In addition, client expectations regardless of the legal specialty, often exceed any realistic outcome. This can be exaggerated by the crushing impact of losing cases sometimes in a public setting. In the hot house environment of the law there are many people who are very skilled, and there is always somebody who seems to be better in all the ingredients that make up the qualifications to be a lawyer. Notwithstanding these issues I would ask, do we have to be an A in everything to be happy? Do we have to be so hard on ourselves? The scriptures do of course address happiness, but not in terms of material or academic success or skill or professional achievements.

Our doctrine is set forth succinctly in Mosiah 2:41. King Benjamin taught, “…I would desire that ye should consider on the blessed and happy state of those that keep the commandments of God. For behold they are blessed in all things, both temporal and spiritual; and if they hold out faithful to the end they are received into heaven, that thereby they may dwell with God in a state of never-ending happiness. O remember, remember that these things are true; for the Lord God hath spoken it.” ⁸

I was impressed a while back by an editorial page article in the Wall Street Journal written by Mr. Steve Salerno. The title was The Happiness Myth. He remembered asking his dad when he was 13, “Are you happy?” His father answered, “Son, a man doesn’t have time to think about that. A man just does what a man needs doing.” He then recited a second encounter with his father. He said his dad told him, “Life isn’t built around fun. It’s built around peace of mind.” ⁹

That resonated with me as I read it because one of my favorite scriptures is Doctrine and Covenants Section 59, verse 23: “But learn that he that doeth the works of righteousness shall receive his reward, even peace in this world, and eternal life in the world to come.” ¹⁰

I would suggest a better list to put on the white board would have been the attributes and teachings of the Savior. That is the list that without comparing ourselves to others, we should be striving to achieve and would allow us to have the peace I have just described.

When the Missionary Department was working on the new missionary guide, Preach My Gospel, we knew that to be successful, missionaries needed to emulate the Savior. We also felt if missionaries seriously worked on Christ like attributes, it could become a lifelong quest that would supersede the kind of comparisons I have described. I respectfully submit that members of the legal profession would be blessed if they did not underestimate their accomplishments and capabilities.

The second concept I want to touch on this evening is the constitutional provision that the United States Congress would “make no law respecting an establishment of religion” or “prohibit the free exercise thereof.” ¹¹ My emphasis is religious freedom and the practical participation of people of faith in government. John Adams in speaking of the US Constitution said, “…Our Constitution was made only for a moral and religious people…” ¹² James Madison, known as the Father of the Constitution, added his view that there had to be a “sufficient virtue among men for self-government.” ¹³ Thomas Jefferson favored protection of religion and conscience, but also wanted freedom from religion. ¹⁴

The history of the members of our Church has caused us to be vigilant on free speech and freedom of religion issues. In our early Church history the vast majority of our members were anti-slavery. ¹⁵ This was prior to the Civil War and was a major element, along with our religious beliefs, in the hostility, mob violence, and ultimately the extermination order issued by Governor Boggs of Missouri. ¹⁶

During the past year and a half the Church has experienced many issues that have highlighted the significance of freedom of religion. At the direction of the First Presidency Elder Ballard and I, chairman and vice-chairman respectively of the Church Public Affairs Committee, have visited with many members of the media as well as leaders of other faiths. Let me review some of these visits. In the latter part of 2007 and the early part of 2008 we visited with the editorial boards of 12 newspapers, magazines, and journals. These included several influential newspapers such as The Washington Post, USA Today, The Boston Globe, The Wall Street Journal, and The Chicago Tribune.

In addition we visited the editorial boards of diverse magazines such as US News and World Report, The National Review, and The New Republic. More recently we have met with broadcast media. For instance in January of this year we escorted many of the media through the New Draper Temple Open House. We were interviewed by Dan Harris of ABC for his Nightline program. This gives you the flavor of the visits and the breath of viewpoints that they have. Other equally significant media entities were visited.

One purpose was to explain to them the neutrality that the Church maintains in partisan politics. We do not support political parties or political candidates. We explained to them that we do not allow discussions of political parties or candidates to be made from our pulpits. We do not distribute cards indicating for whom members should vote. We pointed out to them that we have faithful members of the Church in the various political parties and used as an example Senate Majority Leader, Harry Reid, and Senior Republican Senator, Orrin Hatch. We told them that we always reserve the right as a Church to take specific positions on moral issues. From time to time the Church has done this. When the Church does take a position, it does so in a public and transparent manner. The Church does not tell legislators how to vote. Legislators and members are always free to vote their conscience. We then opened the discussions to questions from them. There were two that were asked by almost every editorial board. The first was, “Why are you so secretive?” When we probed on this question, we were surprised to find that virtually in every case these highly educated, well informed people believed that you had to be invited by a member of the Church to attend a Latter-day Saint meeting. Elder Ballard and I were astounded, having both recently been in the Missionary Department working with the 53,000 missionaries trying to get every investigator to attend Church; we could not believe what we were hearing. It soon became clear that they were all confusing our temples with our meeting houses. We were able to explain to them that we have approximately 18,000 chapels where meetings are held every Sunday which anyone can attend without permission. We have 128 operating temples which were open to the public before their dedication and where tours were given to explain what occurs in the temple. Then they are dedicated to the Lord and are closed because they are sacred, not because they are secret.

The vast majority of the media were surprised to learn that an unpaid lay leader presided over the ward and branch units. They were also surprised to find that women participate in giving talks and prayers at our most sacred meeting, the Sacrament Meeting.

Turning to the second question which was uniformly asked, and remember some of this was during the Romney For President Campaign in the US, “Why do some people take the position that you are not Christians?” They had in front of them our cards describing us as Apostles of the Church of Jesus Christ of Latter-day Saints. We told them that we are neither Catholic nor Protestant. We are restored New Testament Christianity. We explained to them, if you want to know how Latter-day Saints live their lives, look at the Savior’s teachings in the New Testament. We attempt to emulate Christ-like attributes. We were pleased to report to them our demonstrated efforts to help the poor, the sick, and the needy. Our commitment to fasting and giving offerings to assist those in need is a marvelous Christian effort. Faithful home and visiting teachers bless lives in a most remarkable, Christ-like outreach. 

We pointed to the concluding chapters of Matthew, Mark, and Luke, and John where the Risen Lord asked His disciples to preach His gospel and feed His sheep. We noted that in this dispensation over a million missionaries have served. We acknowledged that at some times to some people it feels like the missionaries are invading their privacy, but that the Savior’s commandment requires us to preach His gospel.

In most of the meetings there was a discussion of the Nicene Creed to which we do not adhere because of the revelations received by the Prophet Joseph Smith. I would have to say that they seemed far more interested in the fact that we worship the Savior and emulate His teachings than in deep theological differences with other Christians.

Again I want to note that we were well received and treated with great respect. Of course there were numerous other questions which I do not have time to review tonight. In many of these meetings, and particularly in follow-up conversations, the issue was raised by some of the media suggesting that the Church and its members be more vigorous with respect to answering legitimate questions people have about our faith and also in dealing with some of the bigotry that occurs.

My concluding purpose and perhaps the most important is to invite you highly educated and talented individuals to do what the media has suggested. Additionally I would like to challenge you to contemplate how you can improve the society in which you live. Participating in government and asserting righteous principles in the public square would be a commendable and much needed goal. Many times your particular talents are needed to defend our faith.

What exactly are we asking you to do? First, you will not speak for the Church itself. Only the First Presidency and those authorized from time to time by them will speak for the Church. We are asking you as individuals to respond appropriately and in a Christ-like fashion whenever and wherever it is necessary.

Elder Ballard, speaking at BYU Hawaii and BYU Idaho asked our young students to become more involved particularly with respect to the internet. ¹⁷ The emergence of the internet has generated countless worldwide conversations on a huge range of subjects, including religion. As we all know many internet conversations are about the Church. We see them on blogs, in readers’ letters to online publications, in YouTube videos and a variety of other formats. These conversations go on whether or not we choose to participate in them.

Most people, even in America, are uncertain what to make of Latter-day Saints. If they know a Latter-day Saint personally, they often have a good impression. But they also hear harsh or mean-spirited criticisms or accusations against the Church. By training, experience, and judgment you are among the Church’s most articulate and thoughtful members. So what is your responsibility during this period of unusual public attention and debate? As Elder Ballard asked a BYU Marriott School of Management Society audience last year in Washington: “Are you going to be an active participant or a silent observer only?”

Elder Ballard went on to say: “The Church must not be reluctant to participate in public discussion. Where appropriate, we will engage with the media whether it’s the traditional, mainstream media or the new media of the internet. But Church leaders can’t do it all, especially at the grass-roots, community level. … we look to you as responsible and faithful members to engage personally whether it be blogs or writing thoughtful letters to news organizations, or to act in other ways to correct the record with your opinions.” ¹⁸

Neither is it always about correcting information. Sometimes it’s as simple as sharing your personal life experiences to show how your values and faith intersect, whether it’s how you as a parent engage with your teens, or how you find the time to volunteer in good causes. Countless members of the Church are now doing this. One example I recently became aware of is called The Daily Scoop. It is written by a Church sister in Las Vegas. This good woman experienced a tragic loss of a child in her family, and began writing her blog to help her get through it. People began to notice, and she developed a following as she wrote about dealing with adversity. Often she doesn’t mention the Church at all, but sometimes she does. For instance, she posted comments from the last General Conference talk given by Elder Joseph B. Wirthlin on meeting adversity. Some of the responses from non-members are impressive as they relate to her circumstances. For some it may have been their first encounter with a Latter-day Saint. She comes across as real, thoughtful, intelligent, and dealing with the same problems that many others face, but in a remarkable way that allows gospel values to shine.

As people sense the common ground they share with you, and engage in conversations intelligently, they will relate to your values. I’m well aware that part of the internet is occupied by people who like to abuse and scream at each other rather than discuss - or as The Atlantic Monthly recently reported, who seem to fit somewhere between bigotry and stupidity. ¹⁹ But it’s not all like that. Those sites attract their own followers, but you can rise above that by reading and commenting on the more thoughtful sites and engaging in more respectful dialogue, sharing your values and speaking out for the Church when required.

Many of you are not involved in the internet, but the principles for being engaged in traditional media are similar. As you participate, regardless of the media involved, remember who you are. You are Latter-day Saints. Where possible, be peacemakers. Explain your beliefs in gentle, loving terms. Be wise, thoughtful, considerate and friendly.

I am grateful that we have reached the point where there are thousands of faithful Latter- day Saint lawyers across the world. The dream of Church leaders when the J. Reuben Clark Law School and this Law Society were established is being fulfilled. I am not sure you can fully comprehend how significant you are and what you collectively accomplish in blessing mankind and building the Kingdom of God here on earth.

You have my appreciation, respect, and best wishes. I bear you my witness that this is the Savior’s true Church. In the name of Jesus Christ, amen.

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1. Chesler, Evan R., “Kill the Billable Hour”, Forbes, January 12, 2009, p.26.
   

2. Oaks, Dallin H.,The Divinely Inspired Constitution,, Talk delivered Sept. 17, 2000, p. 6
   

3. Clark, J.Reuben Jr, “Constitutional Government: Our Birthright Threatened,” Vital Speeches of the Day, Jan. 1,

   1939, p.177.

4. The Declaration of Independence, United States of America.
   

5. Gow, Haven B., What the Authors of the Declaration of Independence Really Meant,” LIBERTY, A Magazine of Religious Freedom, V. 72, No. 2, March-April, 1977, p. 13.

6. Weihua, Chen, “Finding the Right Path to Happiness for All,” China Daily, Beijing, China, Nov. 2007,
   

7. Farrar, F. W., The Life and Work of St. Paul,, Cassell and Company, Ltd., 1898, p. 377.
   

8. Mosiah 2:41
   

9. Salerno, Steve, “The Happiness Myth,” The Wall Street Journal, December 20, 2007, p. A17.
   

10. D&C 59:23
    

11. US Constitution., First Amendment.
    

12. Benson, Ezra Taft. The Constitution A Heavenly Banner, 1986, c. John Adams, p. 23.
    

13. Hamilton, Alexander, Madison, James, Jay, John, The Federalist, Number 55, 1952, p.174.
    

14. Smith, Gordon, “Protecting the weak: Religious liberty in the twenty-first century,” Brigham Young University Law Review, 1999.

15. Allen, James B. and Leonard, Glen M., The Story of the Latter-day Saints, pp.81-93, 104-110, 120-130, 2 nd edition, 1992.

16. Arrington, Leonard J. and Bitton, Davis, The Mormon Experience: A History of the Latter-day Saints, 1979, pp44-45.

17. Ballard, M. Russell, “Using “New Media” to Support the Work of the Church,” BYU-Hawaii Commencement, December 15, 2007 and “Making Your Influence Felt,” BYU-Idaho Commencement, April 11, 2008.

18. Ballard, M. Russell Ballard, BYU Management Society – Washington, D.C., April 19, 2008.
    

19. Warren, James, “When No News Is Bad News,” Atlantic Monthly, January 21, 2009.