On social and institutional separation of church and state

December 30, 2004

We have been discussing the separation of church and state on the previous post and I stumbled across a case, Treff v. Hinckley, 26 P.3d 212 (Utah 2001), that touches on the issue of social separation of church and state (as opposed to institutional separation). A total social separation, I posit, is neither possible nor desirable. At issue on the previous post was a statement by a University of Michigan law student in her graduation address that Utah is a “theocracy,” presumably based on the fact that many individuals holding public office in Utah are members of the Church of Jesus Christ of Latter-day Saints (regardless of the fact that church and state are strictly institutionally separated in Utah). So is separation of church and state violated when a judge happens to belong to a certain church? This case doesn’t answer that question directly but holds that such religious affiliation is not grounds for a judge to recuse himself in a case that bears directly on something dealing with the Church:

¶2 On Christmas Day, 1986, Treff shot and killed his wife, Jennifer. The Treffs had two young children. After killing his wife, he took his children to a motel, left them there, and then drove to a coworker’s residence and firebombed it with Molotov cocktails. See United States v. Treff, 924 F.2d 975, 980-82 (1991). He was incarcerated the following day and has remained in custody since that time. He has been sentenced to serve twenty years for manslaughter for the killing of his wife, to be followed by a twenty-five year sentence on federal charges related to the firebombing incident. See id.

¶3 For several months immediately following the incarceration of their father, Treff’s children remained in foster care under the supervision of Susan Chandler, a Division of Family Services caseworker. Subsequently, the State placed the children in the custody of their aunt (Jennifer Treff’s sister), Sheila Doyle. Doyle resided in California and took the children to live with her there.

¶4 Treff asserts that in 1987 and 1988 he was misled into believing that his parental rights had been terminated. He maintains that he was so informed by a Department of Corrections caseworker, two public defenders, and an assistant United States Attorney General. Sometime within approximately a year-and-a-half following Treff’s arrest, both of Treff’s children were baptized into the Church of Jesus Christ of Latter-day Saints.(1) Treff claims that in 1997 he discovered that his parental rights in fact had not been terminated.(2)

¶5 In 1998, Treff filed suit against Gordon B. Hinckley, Thomas S. Monson, and James E. Faust–who constitute the First Presidency of the Church of Jesus Christ of Latter-day Saints (“the Church Defendants”)–and a number of other persons who had undertaken responsibility for the care and custody of his children after his incarceration. Treff alleged that: (1) the Church Defendants and the other defendants responsible for his children’s custody at the time of their baptism had violated Treff’s parental rights by permitting the baptism; and (2) defendants Doyle, Chandler, Wendy Wright, Doris Wilson, and James Baumgardner had intentionally, maliciously, and fraudulently alienated the affections of his children by preventing them from visiting Treff or communicating with him.

¶6 In connection with these stated causes of action, Treff presented a list of six demands for relief. His first two demands for relief were procedural and were unrelated to his causes of action: he requested a judge who was not a member of the Church of Jesus Christ of Latter-day Saints and also asked that counsel be appointed to represent him.(3) His third and fourth demands for relief were apparently related to his cause of action for violation of his parental rights. Specifically, he requested “a declaratory order that defendants have violated the cited state statutes and concurring constitutional rights and protections of plaintiff,” and an “[o]rder that [the Church] defendants immediately withdraw the names of [his children] from the official roles [sic] and membership within the [Church].” The fifth demand for relief was articulated as relief for his alienation of affections claim. It detailed specific sums of money as compensatory and punitive damages to be assessed against each of the defendants. His sixth demand for relief was also apparently related to his alienation of affections claim; it requested that he be provided with the address and telephone number of his children and that the defendants be prospectively enjoined from “any further interference with the communications between plaintiff and children.”

¶7 Treff’s case was assigned to Judge David Young. Treff filed two motions to disqualify Judge Young, based on Treff’s allegations that Judge Young was biased because he was a member of the Church of Jesus Christ of Latter-day Saints. These motions were reviewed by the presiding Judge, Robin Reese. Judge Reese determined that Treff had alleged nothing more than Judge Young’s religious affiliation and his reputation in relation to certain other well-publicized cases as a basis for the motion. Because Treff had failed to make any specific allegations indicating bias in his case, Judge Reese denied both motions for failure to state facts sufficient to support the allegations of bias or conflict of interest.

¶8 The defendants moved to dismiss Treff’s complaint pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. Treff alleges a hearing was held on the motion that he was not permitted to attend. The court granted the motion to dismiss on the grounds that the asserted causes of action were not recognized by law, were barred by the statute of limitations, and would raise serious constitutional concerns if they were recognized.

1. Treff alleges that the baptisms occurred sometime before August 12, 1987, while the children were still in foster care. Defendants Hinckley, Monson and Faust assert that church records indicate that the baptisms took place on July 3, 1988, after the children were placed in their aunt’s custody. The precise date of the baptisms is immaterial to our decision.

2. The Appellees make no argument regarding the actual status of Treff’s parental rights. Because the district court dismissed Treff’s complaint for failure to state a claim, that issue is not before us.


This case, including the denial of recusal based on membership in the Church, was appealed to the Utah Supreme Court:

¶10 Treff’s first two demands for relief are without merit. First, Treff has shown no error in Judge Reese’s denial of his motions for Judge Young’s recusal. A litigant may move for a judge’s recusal upon presentation of “an affidavit stating facts sufficient to show bias, prejudice or conflict of interest,” see Utah R. Civ. P. 63(b)(1)(A), but an allegation that is based on religious affiliation alone or that pertains to allegations of bias in unrelated contexts is not sufficient. Treff had no right to effect the recusal of the judge assigned to a case based solely on the judge’s religious affiliation. Second, there is no statutory or constitutional requirement that counsel be appointed to assist inmates in prosecuting civil complaints that are unrelated to wrongful restraints on personal liberty. See Gardner v. Holden, 888 P.2d 608, 622 & n.5 (Utah 1994); see also Utah Code Ann. § 78-35a-109 (detailing criteria for appointment of pro bono counsel in certain habeas cases).


This case touches on the social separation of church and state in that the fact that a judge is religious, or even that he is affiliated with a particular religious group, does not constitute grounds for recusal in a case that directly involves that religious group. It follows also that membership in a given religious group does not offend notions of separation of church and state or create a theocracy, even if the person at issue is part of the government. What separates us from Saudi Arabia, which Kaimi posited as an example of a theocracy in a comment to the previous post and which Jeremiah J. noted was similarly not a literal theocracy, is our effective constitution which prevents institutional establishment of a religion by the state but in no way attempts to institute a full or even partial social separation of church and state, which is literally impossible.


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