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Federal Court Says Utah's Reformation of FLDS Trust Violates Establishment Clause

By Howard M. Friedman

In a surprising decision yesterday, a Utah federal district court held unconstitutional the five years of state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust. Utah courts have attempted to carry out the reforms using non-religious neutral principles of law.  The Trust holds title to property on which FLDS members live. The reformation proceedings grew out of a 2005 petition by the Utah and Arizona Attorneys General asking a Utah state court to remove or suspend the UEP trustees who failed to defend the trust against tort lawsuits.  (See prior posting.) In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Wisan, (D UT, Feb. 24, 2011), the Utah federal district court held:

By reforming a religious trust and managing it without regard to religion, the state actors became impermissibly entangled with religion. While it is accurate to say the states' actions did not establish a religion, their actions certainly went a long way toward disestablishing one.... The primary effect of the state court's decision to rewrite the Trust and administer it as a secular instrument was to inhibit religion. The resulting intrusion into the everyday life of the FLDS church and its members fostered not only "excessive government entanglement with religion," but was a virtual takeover by the state.

Judge Dee Benson observed that attempting to separate the secular parts of the UEP Trust from the religious parts is like trying "to eliminate football from the Super Bowl."  While much of the attention given to the case has stemmed from the polygamous practices of the FLDS Church and its leaders, the court said:

While it is true the state court judge in reforming the Trust recognized that the FLDS church practiced polygamy, which is illegal, and that the Special Fiduciary would not in any manner be allowed to make Trust administration decisions on the basis of polygamist practices, the state judge nowhere based her decision to reform or administer the Trust on a finding that it was being used to commit or support criminal activity.

Deseret News reports on the decision.

Full post as published by Religion Clause on February 25, 2011 (boomark / email).