An Unparalleled Gathering: A Review of the Idaho Interfaith & LGBT Summit on Religious Liberty and Nondiscrimination Solutions

By Kylie Hicks and Tanner J. Bean

There are two places to resolve competing civil rights: the courts and the legislature. In the courts, rights are pitted against another, locking parties in an expensive, intractable battle that imperils the human dignity of communities as media outlets paint the communities as “enemy” and “other.” In the legislature, the resolution of these rights hinges upon finding common ground between communities with unfamiliar ideas and modes of life.

All photos/graphics courtesy of Kylie Abreu. Summit logo & Partnering Organizations.

Idaho has yet to make up its mind about which approach is more attractive, at least when it comes to LGBT rights and religious liberty. So we convened the Interfaith & LGBT Summit on Religious Liberty and Nondiscrimination Solutions[i] to help Idaho along. The Summit gathered 20 speakers and 150+ audience members from the faith and LGBT communities across Idaho to sit down and talk about the rights each community seeks. It was an unprecedented gathering in our state.

For compromise

The Summit featured four, panel discussions and spanned two days at Boise’s two law schools, where speakers voiced their opinions on the best way to resolve the competing rights of LGBT nondiscrimination and religious liberty. President Pro Tempore Brent Hill, who appears to lead the Idaho Legislature in dialogue[ii] on these issues, anchored one group of speakers. This group held fast to the concept that building common ground between the communities was essential to lawmaking because the best (and perhaps the only politically possible) type of legislation will include protections for the LGBT community and the faith community. This concept is often referred to as a “compromise,” a “balanced” approach, or “Fairness for All.”

Speakers like Eric Baxter, Senior Counsel for the Becket Fund for Religious Liberty, emphasized that such legislation “should make room for people to live, on both sides, their lives in the fullest.” Recognizing that the freedom of one community need not be deprived in order to protect the other, Howard Belodoff, Associate Director of Idaho Legal Aid Services, noted, “you don’t protect or preserve the freedom of one group by depriving others of their freedom.” Representative John McCrostie, the only openly gay legislator currently serving in the Idaho Legislature, seemed to agree. Acknowledging the influence of both faith and sexuality play in his life, he asserted that “[c]ompromise does not require an abandonment of your beliefs. Both the LGBT community and the religious community can hold on to the things that we treasure dearly. These are values that make us who we are, and we don’t have to give that up through compromise.”

Fears about the ability to live authentically in private and in public motivated much of this discussion about compromise. Doug Werth, Lead Deputy Attorney General at the Idaho Human Rights Commission, cataloged the progress of civil rights and the rate of discrimination claims filed in Idaho. Boise Mayor David Bieter explained the motivation behind Boise’s municipal LGBT nondiscrimination ordinance:[iii] LGBT people were afraid to make complaints to the police department for crimes committed against them, fearing collateral consequences if an investigation outed them. University of Idaho College of Law Professor Katherine Macfarlane drew an analogy to disability discrimination, noting that discrimination pervades society and injures individuals going about their daily lives. Perhaps most succinctly, Kathy Griesmyer, Policy Director and Chief Lobbyist at the ACLU Idaho, concluded LGBT discrimination is “not a feeling, it’s a reality.”

Panel 2 speakers address attendees.

Against compromise

Griesmyer joined other speakers at the Summit who rejected the notion of legislative compromise. She argued that the LGBT community should hold out and seek protection from the courts until the Idaho Legislature is willing to pass an LGBT nondiscrimination law without any religious liberty protections. This model follows the “Add the Words” proposal,[iv] which would add gender identity and sexual orientation as protected categories to the Idaho Human Rights Act (IHRA), as Chelsea Gaona-Lincoln, Chair of Add the Words Idaho, explained to Summit attendees.

Senator Grant Burgoyne shared that from his interactions with LGBT advocates, he has no sense that they are willing to compromise. To Senator Burgoyne, it appears the LGBT community has weighed the risk of (1) receiving some protections now from the Idaho Legislature in a compromise bill against the possibility of (2) receiving all desired protections in the future from the courts or a more sympathetic Legislature. Although former Idaho State Representative Nicole LeFavour expressed that “the cost of doing nothing in our state” can be as drastic as murderous hate crimes and violence against the LGBT community, Senator Burgoyne’s estimation is the LGBT community is “willing to wait. They’re willing to fight.”

Proposed and existing religious exemptions

The disparity in opinion of those amenable and opposed to compromise can largely be attributed to the inclusion of religious exemptions in a compromise bill. LeFavour questioned, “What about including [LGBT people] in the law suddenly requires a religious exemption?” For LeFavour, any religious exemption would signal that LGBT people “are less than human.” President Pro Tempore Hill’s “Concepts for Discussion,”[v] which outlines future legislative dialogue, seeks protections for religious organizations and small businesses in the contexts of employment, housing, and public accommodations. These protections would allow employees to “express their religious or moral beliefs without retaliation”; permit business owners to “abstain from celebrating ‘expressive activities,’ such as demonstrations, weddings, and religious events”; allow “faith-based adoption agencies to avoid services that violate their religious policies”; and ensure “business owners will not have their licenses revoked because of their beliefs.”

Currently, the IHRA,[vi] much like its federal nondiscrimination cousins,[vii] contains religious exemptions from the nondiscrimination duties it imposes along the lines of race, color, religion, sex, national origin, and disability. For example, IHRA allows religious corporations, associations, and societies to make employment decisions based on religion; permits religious schools to choose students based on religion; exempts religious organizations and places of worship from the definition of a place of public accommodation; releases small landlords, who may be religious, from non-discrimination obligations; and allows religious charities to give preference to members of the same religion in real property transactions.[viii]

Theoretically, religious exemptions may also be obtained in court under Idaho’s Free Exercise of Religion Protected Act (FERPA),[ix] the state-level cousin to the federal Religious Freedom Restoration Act (RFRA), which codifies a multifactorial balancing test between religious free exercise and the government’s interest in applying otherwise beneficial legislation. However, since FERPA’s enactment in 2000, no appellate court in Idaho has granted a religious exemption—the Idaho Supreme Court has never even addressed the statute.[x] Moreover, no court in the country has ever granted a religious exemption through an RFRA-type law from an LGBT nondiscrimination law.[xi] Yet, at the Summit, Griesmyer, and Gaona-Lincoln expressed that FERPA and the religious exemptions already found in the IHRA will sufficiently protect the free exercise of religion when sexual orientation and gender identity are added as protected classes.

A religious exemption in the public accommodations context may be the sticking point that has prevented a compromise bill to date. Representative McCrostie recounted that in the hearings on a previous Add the Words bill, public comment from the faith community did not demonstrate strong objection to LGBT nondiscrimination protections in employment, housing, or education, but the issue of public accommodations invoked concerns similar to those behind Masterpiece Cakeshop,[xii] where the Colorado Civil Rights Commission sanctioned a Christian baker for declining to bake a wedding cake for a same-sex wedding celebration.

Summit attendees applaud panelists.

Municipal inconsistency

Although the Summit speakers took different views on the matter of compromise, all saw the need for a state-wide measure to be passed in the Legislature. University of Illinois College of Law Professor Robin Fretwell Wilson brought to light that Idaho currently has only patchwork protection for LGBT and faith communities, spread across 13 municipalities that ban LGBT discrimination and the numerous municipalities that do not.[xiii] Griesmeyer expressed how patchwork protections make life unpredictable: one may be protected from discrimination while at work in Meridian,[xiv] but lose protections after traveling home to Nampa. While waiting on a state-wide measure, Luke Caverner, Vice President of the Meridian City Council, encouraged attendees to “take the bull by its horns and go work at the local level.”

Community voices

Several speakers at the Summit spoke less of law and politics and more of compassion. Reverend Sara LaWall, of the Boise Unitarian Universalist Fellowship, professed that as a person of faith, she views her job as loving people “in the fullest expression of who they are as a human being” to “affirm the inherent dignity of every person.” Father Antonio Egiguren of St. John’s Cathedral shared his conviction that solutions are in our hearts as he extolled the golden rule. In step with Father Egiguren, Phillip Thompson, Former President of the Islamic Center of Boise, stated, “If we injure or do harm to one member of humanity, we do injury or harm to all of it.” Or, in the words of religious educator John Thomas, to solve these issues, we must avoid the “Puritan Mistake:” “liberty for me, but not for thee.”

Academic dialogue

The dialogue that unfolded at the Summit is mirrored in the high-level academic debates compacted into an innovative book: Religious Freedom, LGBT Rights, and the Prospects for Common Ground.[xv] The book, edited by Wilson and Yale Law School Professor William N. Eskridge, Jr., was digested by several Summit panelists. Led by Wilson, each panelist responded to a chapter from the volume.

Several of the Summit’s panelists reviewed sections of a new, detailed volume titled Religious Freedom, LGBT Rights, and the Prospects for Common Ground.

President Pro Tempore Hill reviewed former Utah Governor Michael Leavitt’s chapter, Shared Spaces and Brave Gambles, which details five elements that bring opposing parties to legislative compromise: (1) common pain, (2) a shared belief, (3) political equilibrium, (4) skilled conveners, and (5) simultaneous benefit. President Pro Tempore Hill stated that many of these elements are already in play in the Idaho Legislature. Concerning simultaneous benefit, he expressed, “I am convinced, after studying this as long as I have, that each side can have every right that they want.” The chapter reviewed by Representative McCrostie, Choosing Among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy, written by Alan Brownstein, examines another feature of the approach toward cooperative solutions: greater dialogue, tolerance, and engagement. Rather than going “to war and try[ing] to annihilate each other,” Representative McCrostie said Idaho is “not choosing coercive negotiation tactics. What we are choosing to do is choose greater dialogue by the opposing sides.” As Brownstein recognizes, the “essence of liberty in a free society is the right to act wrongfully in the eyes of others.”

Although people of faith and the LGBT community might not see eye to eye, Doug Laycock’s chapter, Liberty and Justice for All, reviewed by Baxter during the Summit, lays out five similarities between the two groups: both (1) believe some “aspects of human identity are so fundamental that they should be left to each individual,” (2) feel their identity cannot be changed by a simple act of will, (3) have been told their rights do not deserve legal protection, (4) desire to live their lives publicly, and (5) have seen their highest virtues condemned. Of this, Baxter instructed that people must “learn to accept the other side’s own view of what they are,” or, put another way, give people “the right to be wrong.”

Senator Burgoyne, who reviewed Rabbi David Saperstein’s chapter, Masterpiece Cakeshop: Impact on the Search for Common Ground, disagreed with one of Saperstein’s conclusions that now is the time for a compromise between faith and sexuality. He argued that because these disagreements will “go on forever,” the courts are the “best place to resolve these rights,” where “religious freedom [is] as every bit as important as LGBTQ rights.” Capping off the book discussion, University of Idaho College of Law Professor Shaakirrah Sanders recognized the fraught jurisprudence of religious liberty and the torch the LGBT community now carries for civil rights. While agreeing that compromise is enviable, she highlighted that “[w]hile we’re waiting to reach our nirvana on these issues, rights are violated and generations of people are affected.”

Beyond these chapters, Prospects for Common Ground offers a “360-degree view of culture-war conflicts around faith and sexuality.” The mere existence of the book serves to discredit the notion that religious liberty and LGBT rights are mutually exclusive, with one necessarily prevailing over the other, as well as the notion that productive dialogue on these issues eludes American society. In the book, authors offer multiple approaches to common ground lawmaking and peaceful coexistence, each of which is instructive to state and national efforts to legislate fairness for all people. What is more is that these solutions come from a vast array of voices: religious liberty and equality advocates, faith leaders, academics, government officials, and legislators. Together, the chapters in Prospects for Common Ground serve as an academic gateway to nuanced, pragmatic, and dispassionate solutions that afford both the faith and LGBT communities a life without discrimination.

Conclusion

It is our opinion that the Summit was an Idaho translation of this high-level discussion, made plain for the communities who fear discrimination among us. As dialogue rolls forward in 2019, we hope that inclusive models and creative proposals—taking faith, sexuality, and gender into account—will emerge as frontrunners. In this arena, the law has the capacity to elevate many Idahoans out of second-class status while affirming the human dignity of all. We hope the Idaho Legislature takes that step.


Kylie Hicks is a second-year student at Concordia University School of Law and co-chaired the Organizing Committee for the Interfaith & LGBT Summit as Vice President of the Concordia Student Chapter of the J. Reuben Clark Law Society.

Tanner J. Bean is an associate attorney at Fabian VanCott in Salt Lake City, Utah, and was at the time of writing a Staff Attorney to the Honorable Judge Molly Huskey of the Idaho Court of Appeals and a Law Fellow with the Fairness for All Initiative. He co-chaired the Organizing Committee for the Interfaith & LGBT Summit as a Board Member of the Boise, Idaho Chapter of the J. Reuben Clark Law Society. Views expressed here are in his personal capacity.


[i] Recordings of the Summit, as well as media coverage and panelists’ biographical information, are available at: goo.gl/QT8VtP

[ii] Betsy Russell, Sen. Hill on LGBT Discrimination Protections: ‘The Risks of Doing Nothing Are Great on Both Sides,’ Idaho Press, Feb. 20, 2019.

[iii] Boise, Idaho, Code §§ 3-14-14, 5-15-1 et seq.

[iv] S.B. 1015, 65th Leg., 1st Reg. Sess. (Idaho 2019).

[v] Available upon request from President Pro Tempore Hill’s office.

[vi] Idaho Code § 67-5901 et seq.

[vii] 42 U.S.C. §§ 2000a et seq., 2000e et seq., 3601 et seq.; see also Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston U. L. Rev. 951, 973–82 (2015) (discussing lasting exemptions from federal civil rights law).

[viii] Idaho Code § 67-5910.

[ix] Idaho Code § 73-401 et seq.

[x] See Ricks v. Contractors Bd., 164 Idaho 689, 435 P.3d 1 (Ct. App. 2018); State v. Cordingley, 154 Idaho 762, 302 P.3d 730 (Ct. App. 2013); State v. White, 152 Idaho 361, 271 P.3d 1217 (Ct. App. 2011); Hyde v. Fisher, 143 Idaho 782, 152 P.3d 653 (Ct. App. 2007); Lewis v. State, Dep’t of Transp., 143 Idaho 418, 146 P.3d 684 (Ct. App. 2006); Roles v. Townsend, 138 Idaho 412, 64 P.3d 338 (Ct. App. 2003).

[xi] Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 U. Conn. L. Rev. 1, 14–19 (2019) (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3360500.

[xii] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[xiii] Local Non-Discrimination Ordinances, Movement Advancement Project (Mar. 28, 2019), http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances.

[xiv] Maria L. La Ganga, Meridian bans LGBTQ Discrimination, Sending What Backer Calls ‘Message of Inclusivity,’ Idaho Press, Sept. 26, 2018; Meridian, Idaho, Code § 1-15-1.

[xv] Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., 2018).

Letter to the Editor from Ret. Chief Justice Robert E. Bakes

Dear Editor,

This letter is a summary of a larger article which I submitted to The Advocate entitled, “Is Global Warming Bad? If So, Is There a Better Way to Stop It?” That article is a response to articles published in the January 2019 issue of The Advocate prepared by the Environment & Natural Resources Law Section.

Contrary to reports in the media and some in the scientific community, carbon dioxide (CO2) is not an air pollutant. The atmosphere consists of nitrogen (78%), oxygen (21%), argon (.93%); carbon dioxide is only .04% (400 parts per million-ppm). However, even in that miniscule amount carbon dioxide is the gas that supports all life on earth through the process of photosynthesis, in which plants convert sunlight, water, and carbon dioxide into vegetation. That vegetation forms the base of the food chain which supports all creatures, humans, animals, and insects. And the oxygen we breathe is a byproduct of that photosynthesis.

Without carbon dioxide, even in those minuscule amounts, there would be no vegetation on earth, no animals, and nothing for humans to eat. Put simply, we humans wouldn’t exist.

But we do exist, and comfortably too, thanks to conditions eons ago when the earth was much warmer, wetter, and carbon dioxide was in much higher concentrations. Those conditions produced the lush vegetation that was laid down millions of years ago and became the huge seams of coal, and pools of oil and natural gas, which brought humans out of the stone-age. That stored energy has provided the food, electricity and hundreds of thousands of other products that support the seven billion people currently living on this planet.

With the population estimated to reach 10 billion by the end of this century, the world will have to rely even more on that stored energy to feed, clothe and house an additional three billion people. The current global warming started about 150 years ago at the end of the last little ice age. That warming and the carbon-based commercial fertilizers manufactured from natural gas have increased the production of food necessary to feed the ever-increasing global population. Solar, wind, hydro and nuclear power can supplement the electricity supply, but nothing can replace carbon in the thousands of uses and products in which it forms the chemical base.

Increasing levels of carbon dioxide can cause heat to be trapped in the atmosphere, potentially increasing global warming. But global temperatures oscillate naturally between warming and cooling in 1,500-year cycles. If trapped CO2 in the atmosphere does exacerbate the natural global warming phenomenon, there are geoengineering experiments currently being investigated to block sunlight from parts of the world to remediate global warming. The cost of that geoengineering is estimated to be only .01% of the hundreds of trillions of dollars necessary to deconstruct carbon from our energy mix and replace it with who knows what! The “green” anti-carbon revolution is a misnomer. It is carbon dioxide that makes things “green”!

The full article in response to the January 2019 issue is available below.

Retired Chief Justice Robert E. Bakes


Is Global Warming Bad?   If So, Is There a Better Way to Stop It?

(Without destroying our current carbon-based energy system)

The world is engaged in a massive expensive effort to reduce carbon dioxide (CO2) in the atmosphere, which most scientists and politicians believe is causing increased global warming.   And the costs of the current attempts to remediate that warming are astronomical.  As reported in an article in the 12/1/18 Economist magazine, p.68. (‘Verdant and vibrant”), “If the world is to tackle global warming, vast amounts of money–$3.5 trillion annually from now until 2050, according to the International Energy Agency, a forecaster—will have to flow into clean-energy research and generation.” That is more than $100 trillion to the year 2050 and $250 trillion by 2100.  And that doesn’t include the cost of retrofitting the existing energy system.

Despite the current worldwide attempts to restrict carbon dioxide emissions, the problem is getting worse.   The Idaho Statesman newspaper reported on 12/6/18 that Global carbon emissions recently soared to record highs, with India increasing 6%, China 5%, and the U.S. 2 ½%.  While the scientific community is divided, most believe that carbon dioxide is accelerating world temperature increases.   But that may not be all bad.  Increased global warming could help produce more food necessary to feed the anticipated 2-3 billion increase in the world population by the year 2100.  Even if on balance global warming causes more harm than good, there may be a better and cheaper way to contain global warming without the gigantic and expensive attack on the world’s carbon energy resources (coal, oil and natural gas), and the expense of retrofitting the entire existing world energy infrastructure–power generation and transmission, chemical and industrial uses, office buildings, homes– to a new energy regime.

First, it is important to recognize that there is very little carbon dioxide in the earth’s atmosphere, which consists of Nitrogen-78%, Oxygen 21%, Argon .93 %, and Carbon dioxide only .04%,(400 parts per million(ppm).  Wikipedia, “Atmosphere-composition”.   However, even in that miniscule amount carbon dioxide is the compound that fuels all vegetation growth on earth thru a process called photosynthesis in which plants convert sunlight, water, and carbon dioxide into the carbohydrates that produce vegetation.  Vegetation forms the base of the food chain for all creatures, human, animal or insect.  And oxygen is a byproduct of photosynthesis which maintains the oxygen in the Earth’s atmosphere which humans and animals need to survive.  Simply put, without carbon dioxide, even in that miniscule amount, there would be no life on earth because there would be no photosynthesis producing vegetation and oxygen.

Then, the ultimate questions which the world community must resolve are:    (1) if increasing levels of carbon dioxide in the atmosphere is accelerating natural cyclical warming, do the benefits of that additional CO2 induced warming to outweigh the damage which it causes; (2) if the global warming benefits do not outweigh the damage, is there a better way to control global warming without eliminating carbon/carbon dioxide from the world’s energy structure.

In a statement often attributed to Justice Oliver Wendell Holmes, there are times when “a page of history is worth a volume of logic”.  Nowhere is that truer than in the role of carbon dioxide in the history of the world.   Geological history discloses that in eons past the earth was warmer, wetter, and vegetation was unimaginable dense, thanks to high carbon dioxide concentrations.  According to a 2017 article by Dennis T. Avery, an agricultural and environmental economist and senior fellow for the Center for Global Food issues in Virginia:

“Our crop plants evolved about 400 million years ago when CO2 in the atmosphere was about 5,000 parts per million!  Our evergreen trees and shrubs evolved about 360 million years ago, with CO 2 levels at about 4,000 ppm.  When our deciduous trees evolved about 160 million years ago, the CO2 level was about 2,200 ppm-still five times the current level.”

Dennis T. Avery

Most of the energy that currently drives the world’s economies come from those high carbon dioxide days millions of years ago that laid down vegetation in huge layers.  Those layers became seams of coal and pools of oil and natural gas.  Humans have been living off that stored energy since the beginning of time, but especially in the last 2-3 centuries.  Without that stored energy humans would still be living in the stone age.  While that supply won’t last forever, there’s probably enough for several more centuries.

But rapidly increasing carbon dioxide concentrations may create a problem– it tends to trap heat in the atmosphere, and in too great concentrations may cause increased global warming.   The word “increased” is the key.   The earth has been in a continual state of global warming since the last big ice age which occurred about 12,000-15,000 years ago, which covered most of North America with ice and snow, hundreds of feet thick in some places.  As reported by Dr. Avery, “What few realize, however, is that during the last Ice Age too little CO2 in the air almost eradicated mankind.  That’s when much colder water in oceans (that were 400 feet shallower than today) sucked most of the carbon dioxide from the air…The Ice Age’s combined horrors-intense cold, permanent drought and CO2 starvation-killed most of the plants on earth.  Only a few trees survived, in the mildest climates.  Much of the planet’s grass turned to tundra, which is much less nourishing to the herbivores [which] prehistoric humans depended on for food and fur.  Recent Cambridge University studies conclude that only about 100,000 humans were left alive worldwide when the current interglacial warming mercifully began.” (Avery at ps. 1-2)

Even the little ice age, which occurred more recently – about 3-5 centuries ago – substantially reduced temperatures in Europe causing major crop failures resulting in millions of people and animals starving.  The Norse, who settled in Greenland around the year 1000 A.D., during the Medieval Warm Period, farmed and raised grain and cattle for several hundred years until they were forced to abandon their settlements about 1500 A.D. because extreme lower temperatures during the little Ice Age made farming Impossible.  It had the same effect in North America.  While the indigenous people here did not have written languages, the record of such cooling is reflected in such events as the abandonment of the pueblos in the southwest U.S.

So, global warming and cooling is nothing new.   Warming has been occurring naturally in cycles, most recently after the end of the recent Little Ice Age, and geologically for eons before that.  However, the prior warming and cooling periods were slow enough, and populations were sparse enough, that populations were able to adjust without too much dislocation.   For example, the Norse had decades to relocate out of Greenland.  Holland had centuries to build up its dikes. But the current global warming is predicted by some scientists to cause oceans to rise too rapidly, causing dislocations, especially in low lying cities and countries.

But there are also major benefits from Global warming.    In an article in the December 1, 2018  issue of the Economist magazine entitled, “Good times in Grainville”, the Economist noted that in Russia “Rising temperatures and improving technologies mean longer growing seasons, higher crop yields and wider swathes of arable land in much of Russia”, … “Everyone is moving north”.  The article further notes that “In 2016 Russia became the world’s leading exporter of wheat for the first time since before the Russian revolution”… “Grain is our second oil,” said Aleksandr Tkachev, the agriculture minister.  During the early Soviet days, before the recent warming trend, Russia was an importer of grain.  Global warming has helped Russia become the world’s leading producer and exporter of wheat, which perhaps explains why Russia, and four other countries including the U.S., balked at “welcoming” the recent special report of the current Intergovernmental Panel on Climate Change in Poland which severely criticized the inadequate goals to limit carbon dioxide emissions.     Global warming appears to be economically good for Russian agriculture– and probably for Canada as well, and for other countries in the world’s temperate zones which have large swathes of arable land which a warmer climate with more carbon dioxide would make more productive.

As reported by scientists S. Fred Singer Ph.D. and Dennis T. Avery in their book “ Unstoppable Global Warming-Every 1,500 Years”, (ROWMAN & LITTLEFIELD 2008), world temperatures tend to oscillate between warming and cooling periods  of approximately 1,500 years, and the earth is currently in a warming phase since the end of the little Ice Age about 1850 A.D.  The increase in worldwide population has benefitted from “more CO2 in the air [which] enables plants to grow better at nearly all temperatures, but especially at higher temperatures…” (Unstoppable at p. 174)  The ever-increasing world population (from 7 billion to 10 billion by 2100) will require more food which global warming and increased carbon dioxide could help produce.   According to Singer and Avery, “Doubling the level of CO2 raises the net productivity of herbaceous plants by 30 to 50 percent and of trees and woody plants by 50 to 80 percent, based on extensive reviews of the research by Sherwood B. Idso and Bruce Kimball, then of the U.S. Department of Agriculture’s Water conservation Laboratory and Henrik Saxe, of the Royal Veterinary and Agricultural School of Denmark.” (Unstoppable at p. 175).  That has been demonstrated in the greenhouse plant industry which in recent decades has been injecting high levels of CO2 into sealed greenhouses which substantially increases plant growth.  So before the world engages in an all-out war on carbon dioxide emissions, it should compare the benefits of global warming to its detriments.  Only if it appears that the damage it causes will substantially exceed the benefits, should the world consider rejecting the current carbon energy regime.

But even before that, we should examine to see if there is another way to stop excessive global warming without spending hundreds of trillions of dollars to restructure the entire world’s energy and economic systems to eliminate carbon dioxide.  There is a way called “stratospheric aerosol injection”—injecting aerosols high into the atmosphere.  It occurs naturally when there is a major volcanic eruption, such as occurred in 1991 when Mount Pinatubo erupted belching sulfate gases into the atmosphere causing a .5 degree cooling of the earth’s atmosphere.  The most dramatic example of stratospheric aerosol injection occurred 66 million years ago when a giant 7-mile wide asteroid hit the shore of the Yucatan peninsula causing the extinction of the dinosaurs and three-fourths of the species on earth.  As reported in the PBS NOVA program on January 22, 2019, it wasn’t the shock and heat wave that caused the extinction, although it killed everything within several hundred miles.  It was the mega tons of clouds of smoke, dust and sulfur dioxide hurled into the atmosphere which quickly spread around the world, eliminating substantially all sunlight for months or years causing a global winter.  With no sunlight, there was no photosynthesis and substantially all vegetation around the earth died causing the great animal extinction. According to NOVA, only a few small species survived, living on seeds not damaged by the blast, seeds which eventually sprouted bringing back vegetation to earth, starting the cycle over again.

Stratospheric aerosol injection could possibly solve the global warming problem.   As noted in another article in the Economist magazine, December 1st, 2018, ”The Intergovernmental Panel on Climate Change notes that reflecting sunlight back into space before it warms the Earth’s surface, perhaps using particles—a form of ‘solar geoengineering’—is ‘highly likely’ to limit temperature rises”.

There are recent indications that some in the scientific community have started to recognize that solar geoengineering may be a better and cheaper way to control global warming if that is necessary or desirable.  Several years ago Harvard University established a Solar Geoengineering Research Program to study the possibility of controlling global warming by using aerosol injections into the atmosphere.   A recent article reported that Harvard scientists, supported by a $3 million dollar grant from Bill Gates and others, are preparing a geoengineering experiment in the spring of 2019 to “launch a maneuverable balloon into the stratosphere above the United States southwest…[to].programmatically release calcium carbonate into the stratosphere” to block out the sun’s rays from the earth as a way to defeat climate increase.  See https://prepforthat.com/harvard-scientists-block-sunsrays.com. (12/8/18)

Only recently has any effort has been made by governments, the scientific community, or the media, to evaluate the benefits of global warming, and to compare those benefits to the detriment that global warming might cause in parts of the world, such as low lying cities and countries which will be subject to flooding by rising seas.    But before the world gets too heavily invested economically and politically into trying to stop global warming by reducing carbon dioxide emissions, it should consider the solar geoengineering option.  According to an article in Wikipedia “Around 5 million tons of SO2 delivered annually to an altitude of 20 to 30 km is predicted to sufficiently offset the expected warming over the next century” at an estimated cost of only 2 billion to 8 billion dollars annually. That amount is not even one one-hundredth(.01) of the estimated $3.5  trillion annual costs of the current global warming anti-carbon mitigation effort, as reported by the International Energy Agency in the Economist article.

But solar geoengineering has some complications too.  Which entity is going to determine how much warming will be allowed to occur?   If any country can control global warming by injecting aerosols high in the stratosphere that ultimately spreads around the world, then that country has control of the world’s thermostat.  While Russia and other countries and regions may want the world warmer so it can raise more grain and other agricultural crops, Holland and islands and low-lying countries along the oceans may want the world cooler to stop rising oceans.  And most countries and communities in the world will have conflicting interests.  For example, in Florida, the tourist industry will want stable ocean levels for its beaches and waterfront hotels and homes.  But as reported in the PBS news broadcast on Sunday, March 31, 2019, rising temperatures and ocean levels along the Florida east coast are allowing the Mangrove trees to migrate north protecting the shores from erosion and providing sanctuaries for fish and wildlife.  Further research would probably demonstrate thousands of such conflicting interests.    If any country that wants to lower the earth’s temperature, for whatever reason, can turn down the earth’s thermostat by injecting aerosols into the atmosphere, which as previously noted is not that expensive, then it could become a “race to the bottom” by the country that wants the coolest world temperature.   Not a good prospect!

But is that any different than the current world situation where a majority of the countries are joining to try and stop global warming by limiting carbon dioxide emissions?  And as the world tries to establish carbon controls, India and China, and yes the United States, continue to increase CO2 output, while Russia, and other countries, benefit from global warming.   If most of the countries of the world think they can agree to invest hundreds of trillions of dollars in this century to reduce carbon dioxide emissions in order to control global warming (unsuccessfully so far), then they ought to be able to agree to invest even a small part of that capital on solar geoengineering research to control warming.   Some of those aerosols might even be positioned, like satellites, in geosynchronous orbits over equatorial areas where most global warming occurs, cooling the equatorial areas while allowing the northern climates to warm to improve agricultural production.

With so much at stake, it would seem prudent to divert at least some of the hundreds of trillions of dollars now being proposed to fight carbon-induced global warming into solar geoengineering research.  But it won’t be easy.  Most of the scientific community and world governments and community leaders are intellectually, economically and politically committed to spending hundreds of trillions of dollars to eliminate carbon from our energy mix, without any idea where those trillions will come from.  Never-the-less, suggesting that some funding be diverted to other possible alternatives to control global warming will face opposition from heavily entrenched vested economic and social interests.  However, solar geoengineering if successful would be infinitely cheaper than trying to eliminate carbon from the world’s energy supply, which may not even be economically feasible.  And allowing carbon dioxide to increase in the atmosphere would increase food production to feed the increasing world population.

It is important to recognize that burning carbon to generate energy does create air pollutants. Air pollution is a serious problem that must be addressed.  The removal of many air pollutants is currently being required in industry and automobiles.  However, public health requires that much more needs to be done to improve air quality, particularly in cities.

However, carbon dioxide is not an air pollutant!  It has been described as “the gas of life”.  It supports all plant life on this planet thru photosynthesis.  Without carbon dioxide, there would be no plants.  Without plants, there would be nothing for humans and animals to eat and no oxygen to breath.  Humans simply wouldn’t exist.

So if solar geoengineering can control global warming while allowing carbon dioxide to increase, it should at least be given a try before the world attempts to deconstruct the current carbon energy system.  But even if the world does decide to move ahead with a so-called “green” non-carbon revolution (an oxymoron–it’s carbon dioxide that makes things green), it first needs to answer two questions:  1) how much GDP is the world willing to sacrifice to deconstruct the current carbon energy system; and 2) where will the hundreds of trillions of dollars come from that it will take to create a non-carbon energy system.  Until those two questions can be answered satisfactorily and economically, there is only one practical choice–use the current carbon energy system, but invest and regulate it to improve air quality, particularly from autos and coal-fired plants.

President’s Message on Renewal

By David Cooper

A very important aspect of practicing law (of practicing life, really) is maintaining your mental and emotional well-being often referred to as “Attorney Wellness.”  The Idaho State Bar and the legal profession as a whole have become acutely aware of the need to maintain and enhance attorney wellness. 

The purpose of this article is to encourage you to take attorney wellness seriously.  While every situation is unique, most of us are in the best position to keep ourselves functioning in a healthy and productive manner.  We need to take responsibility.  If a burden becomes too great, we have to be prepared to take action.

Renewal as Strategy

One potential means of enhancing your wellness is to experience intentional and purposeful renewal.  In other words, make renewal a strategic part of your life.  The definition of renewal that comes closest to what I am referencing is “the replacing or repair of something that is worn out, run-down, or broken.”

The opportunity for renewal in its most basic form happens every single day when we crawl out of bed on at least a few hours of sleep, with fresh (or fresher) eyes than the night before.  If you are a morning person like me, have you noticed how problems that seemed insurmountable the night before are often not nearly as onerous the next morning?

Purposeful renewal can be found in events major and minor.  Passing the bar exam, starting a new job, or moving to a new location are all fairly obvious examples.  I am a runner – whatever form of exercise works for you can also provide renewal.

Time-related milestones can help us.  Recurring opportunities for renewal include:

  • January 1st of every year – that’s why we have “New Year’s” resolutions, right? 
  • Your birthday – especially those birthdays ending in a zero (30, 40, 50, 60, 70, etc.).  These are a great reminder that the clock is ticking for all of us.  If we’re gonna do something, we can’t wait forever.
  • The first day of every month, and even the Monday morning of every work week.  These days can essentially provide you with an excuse for starting over.

Renewal as Survival

If we live long enough, life will throw some significant challenges at us.  In my late teens, I was fortunate to survive a situation (a drowning accident) that took the lives of my parents and a brother and sister.  I’ve often thought that this tragedy forced me to find emotional survival tricks.  Renewal is one of them.  When a person is dealing with loss, you can end up in some dark places and need to find a way out.

Photo courtesy of David C. Cooper. A newspaper article from David Cooper’s high school years described a family tragedy the shaped Cooper’s use of ‘renewal’ as an emotional survival strategy. Click here for a transcribed, text-only version of the article.

Here are some of the things I think I learned along the way:

  • Be nice to yourself – sometimes crazy is normal, depending on the circumstances.
  • Find people you can be vulnerable around.  Probably obvious, but crucial. 
  • Make sure to give to others when you can, because in challenging times you may need to be a taker.  Sometimes it’s okay to be selfish.  Pay it back (or forward) when you can.
  • Don’t be afraid to “trial and error” your way through different possible means of helping yourself.  Not every solution works for every person.
  • One of the most difficult lessons for me:  be humble.  You have a breaking point.  Sometimes you can’t actually do it all yourself.

Do you hate your job?  Find a new one.  Are you spending too much time at the office due to billable hours?  Find another way to get paid.  Are key relationships in your life not flourishing?  Re-prioritize.  Doing too much or too little of anything in your life?  Figure out the root problem and take control. In summary, having the imagination, strength, and strategies to find an excuse to start over can help us to enhance our lives, or let go of prior events and move forward.


David C. Cooper

David C. Cooper is the Idaho Regional Manager for Northwest Trustee & Management Services based in Boise where he specializes in trust administration and financial planning. David received his J.D. from the University of Kansas and upon graduation served as a law clerk for the Honorable Thomas E. Schulz in Ketchikan, Alaska. David is the current President of the Boise Estate Planning Council, past President of the Treasure Valley Estate Planning Council, and past Chairperson of the CLE Planning Committee of the Idaho State Bar Taxation, Probate & Trust Law Section. David graduated from the Idaho Academy of Leadership for Lawyers in 2015. In his spare time, he is a runner, plays guitar, and is an avid sports fan.

Idaho Municipal Attorneys Annual Summer Meeting – June 21

The IMA Annual Meeting will be held in conjunction with the 2019 AIC Annual Conference. For more information, visit their website by clicking HERE.

Keeping the Constitution – Free CLE, June 20

Website Update

Thanks to the diligent efforts of our web development teams, the functionality of our website is now restored. If you are still experiencing issues with the search functions on our website, please try 1.) Refreshing the page or 2.) Clearing your cache/history and reopening the page.

Please Note: There are several pages on our website that use a brand new layout tool that is NOT compatible with Internet Explorer. If you come across a page that does not look right (i.e. buttons are inaccessible, text is stacked on top of itself, etc.) please close out the page and use a different browser.

Thank you for patience!

New Idaho State Bar Commissioners – Kurt Holzer & Anne-Marie Fulfer

The voting members of the Idaho State Bar elected two new members of the Board of Commissioners. Boise attorney Kurt Holzer will represent the Fourth District, replacing current ISB President David Cooper. Moscow attorney Anne-Marie Fulfer will represent the First and Second Districts, replacing Commissioner Mike Howard of Coeur d’Alene. Both Commissioners will serve three year terms, beginning in July 2019.

Kurt Holzer is a partner in the Boise law firm Hepworth Holzer. A 1992 graduate of the S.J. Quinney College of Law at the University of Utah, Kurt was a William H. Leary Scholar and served as Executive Editor of the Utah Law Review. Kurt is a former President of the Idaho Trial Lawyers Association. He continues to serve, as he has since 1999, as a member of the Professional Conduct Board of the Idaho State Bar.

Anne-Marie Fulfer is the Assistant Dean for Career Development at the University of Idaho College of  Law and a 1999 graduate. Based in Moscow, Anne-Marie has overseen the Career Development Office for Moscow and Boise since 2003. Anne-Marie is a member of the Idaho Women Lawyers and the Raymond C. McNichols Inn of Court. Prior to attending law school, Anne-Marie worked in the California wine industry for nine years for a Catalan sparkling wine company, as an international freight forwarder specializing in wine shipments from the Sonoma Valley, and as an insurance agent in Moscow.

ABA Full Approval Celebration at Concordia Law -May 3

Friday, May 3, 2019
4:30 p.m. – 7:00 p.m. (MT)
Concordia University School of Law, Broad Street Atrium (entrance on Broad Street between 5th and 6th Streets)
501 W. Front Street – Boise, ID

Concordia University School of Law invites all members of the Idaho State Bar to its ABA Full-Accreditation Celebration on Friday, May 3rd, 2019 beginning at 4:30 PM.  A brief program will begin at 5 PM and celebrate the attorney/community engagement, support, and involvement that led to Concordia Law’s full-accreditation.  The program will include special recognition of bar members who served as adjunct faculty members, mentors, and externship supervisors during this past year.  The remaining time will be dedicated to socializing, networking, and celebrating.

Hors d’oeuvres and hosted beer, wine, and champagne will be served.

Please RSVP at: https://law.cu-portland.edu/celebration

Concordia Law thanks you for your continued support and looks forward to celebrating with you!

Idaho Law Foundation, Inc. Newsletter Now Available – April 2019

The April 2019 Idaho Law Foundation Newsletter is new available. Read about our new Program and Legal Education Director, Teresa Baker, the great work IVLP is doing through local legal clinics, the upcoming Access to Justice Fund Run, and meet a very talented young courtroom artist who will represent Idaho at the National Courtroom Artist Contest in May.

Read the full newsletter by clicking the button below:

Support the Law Foundation on Idaho Gives Day – May 2

On Thursday, May 2 the Idaho Law Foundation will participate in Idaho Gives to help raise funds to support the Idaho Volunteer Lawyers and Law Related Education Programs. Please consider supporting the Idaho Law Foundation and our mission to increase access to civil legal services and enhance public understanding of the law and our legal system. Visit the Idaho Law Foundation Idaho Gives page on May 2 and pledge your support for Law Foundation work statewide.