Academic

Andersen on the United Effort Plan Trust Litigation

By Lawrence Solum

Eric G. Andersen (University of Iowa - College of Law) has posted Protecting Religious Liberty Through the Establishment Clause: The Case of the United Effort Plan Trust Litigation (Utah Law Review, September 2008) on SSRN. Here is the abstract:

The Fundamentalist Church of Jesus Christ of Latter Day Saints is best known for its open practice of polygamy, long abandoned by the church from which it broke away generations ago. Less notorious is its communitarian economic program involving the centralized ownership and management of the real estate assets of the church and its members. Their houses, farms, and businesses, located in a remote community straddling the Utah-Arizona border, are owned by the United Effort Plan Trust, a public charitable trust. The terms of the trust have obligated the trustees to administer its assets in accordance with religious principles. The Trustees have historically been leaders of the church.

In 2005 the Utah Attorney General alleged that the trustees were committing serious breaches of their fiduciary duty, putting its assets at risk. In response to the Attorney General's petition, a state trial court placed control of the trust in the hands of a "special fiduciary." The court then reformed the trust extensively, converting it into an essentially secular instrument. For example, trustees selected and controlled by the church president are to be replaced with a board approved by the court. They are to accept only non-binding advice from ecclesiastical leaders. The "needs and just wants" of beneficiaries are no longer to be gauged by religious purpose and the mandates of scripture, but by the new trustees' assessment of their need for adequate housing and education. The changes wrought by the court impose deeply upon the religious character of the trust.

The reformation of the trust raises challenging issues under the religion clauses of the First Amendment. The reformation may pass muster under the Free Exercise Clause, but the court did trespass the bounds of the Establishment Clause, which constrains the state from intruding into the functioning of a religious community.

Full post as published by Legal Theory Blog on May 09, 2008 (boomark / email).