Stop Skipping the Establishment Clause

For as much as we love religious freedom (BYU just finished its annual two-day conference on the topic), Mormons don’t pay much attention to the Establishment Clause.  Which, if you think about it, is astounding.  What else is Mormonism, if not the greatest Establishment Clause failure of the 19th Century?

Today’s guest post is from Carolyn Homer.  Carolyn Homer is an attorney and religion constitutional law enthusiast in California. She has represented the Anti-Defamation League and other religious organizations as amici before the U.S. Supreme Court, most recently in Zubik v. Burwell, which concerned religious exemptions to the Affordable Care Act.

In 1838, the Governor of Missouri ordered that “the Mormons must be treated as enemies, and must be exterminated or driven from the State.”  In 1857, President James Buchanan devoted paragraphs of his State of the Union address to raising an army for the Utah War: “We ought to go there with such an imposing force as to convince these deluded [Mormon] people that resistance would be vain.”  In 1887, Congress passed a law dissolving the Corporation of the Church of Jesus Christ of Latter-day Saints and banning everyone in Utah who even believed in polygamy from voting, serving on a jury, or holding public office.  And the Supreme Court in 1890 said all this was perfectly constitutional.

Livid over this religious disrespect, Elder Charles Penrose expounded upon the Establishment Clause:

One body of people professing one faith must not interfere with the rights of any other body of people professing another faith. The Latter-day Saints, as well as the Latter-day sinners, the Methodist as well as the Catholic, the Jew as well as the Gentile—all people alike in this great country must be protected equally in these natural rights which belong to them.

Here, then, is where the line must be drawn. Anything that persons profess to do under the name of religion, which interferes with the rights of others is wrong, and the secular law may step in and protect the citizens and restrain or punish those people who attempt to do this under the plea of religion.

The Supreme Court rejected his position in the 19th Century — polygamy was just too abhorrent to “all civilized and Christian countries.” Ironically, however, now that Mormon sexual morals are mainstream, courts have adopted Elder Penrose’s erstwhile position.  The same Establishment Clause argument he advanced to defend polygamy has now been deployed to protect same-sex marriage.

On July 1, a federal judge struck down a new Mississippi law which said that the state could not punish people or businesses who religiously disapprove of same-sex marriage, extramarital sex, or transgender persons. The law exempts county clerks from issuing marriage licenses, hoteliers from renting rooms, and bakers, florists, photographers, and chauffeurs from supporting same-sex weddings.

A group of religious leaders brought a constitutional challenge, arguing that Mississippi’s law made their more progressive religious beliefs second-class.  The Court agreed, explaining that the Mississippi law “favors Southern Baptist over Unitarian doctrine, Catholic over Episcopalian doctrine, and Orthodox Judaism over Reform Judaism doctrine.”  The law violates the Establishment Clause because it gives persons with specific religious beliefs “an absolute right to refuse service to LGBT citizens without regard for the impact on their employer, coworkers, or those being denied service.”

Although the Mormon Church has made no official statement, many Mormon leaders and members disapprove of this result.  After all, the beliefs protected by the law are ones the Church teaches; the Family Proclamation “calls on citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family”; and the Church has publicly supported similar bakery and photography religious objections in the past.

Such disapproval is short-sighted.  As a once-persecuted minority, this robust of an Establishment Clause ruling is cause for celebration.

After all, the same Establishment Clause that forbids Mississippi’s blanket permission for religious rejections will also forbid — as the Deseret News fretted about this week — the Iowa Civil Rights Commission’s attempt to censor religious sermons about same-sex sins.

The same Establishment Clause that allows the United Church of Christ to perform religious same-sex marriages will also protect the Mormon Church’s refusal to perform same-sex temple sealings.

The same Establishment Clause which should have stopped Mormons’ exile in the 19th Century is what will protect Islam from exile in the 21st.

The Establishment Clause imposes a structural limitation on government power.  That limitation is precisely what makes the Establishment Clause one of the best guarantors of universal religious freedom the world has ever seen.  By separating religious and governmental canons, its end  “is not to abolish or restrain, but to preserve and enlarge freedom.”

As far back as 1835, the Doctrine & Covenants proclaimed we do “not believe it just to mingle religious influence with civil government.”  Joseph Smith recognized that the Establishment Clause operated to protect his minority faith.  In a letter he wrote while fleeing Missouri, Joseph lauded the Establishment Clause.  He realized that once freed from both government favor and disfavor, his sect “must rest upon its own merit” where it “will prosper in proportion to the purity of its principles, and the fruit of holiness and piety produced thereby.”


  1. The problem with this analysis is that every Free Exercise Clause exemption–such as decisions protecting Sabbath observers from firing or Jehovah’s Witnesses from punishment for refusing to salute the flag–could be flipped on its head and turned into an Establishment issue: the government is treating those believers differently from the Presbyterian who refuses to work a Saturday shift or the Baptist who feels unpatriotic one day, and therefore “establishing” Seventh Day Adventism or Jehovah’s Witnessism. But that of course is nonsense.

  2. I suspect that American Mormons’ lack of understanding of the Establishment Clause is in large part the result of their adoption of mainstream American conservative views that rest on a fictionalized version of the Founding Fathers.

  3. I am certainly glad the Mississippi law was overturned. But I’m not sure I completely understand how this fits into the Establishment Clause. How does it favor conservative religions above liberal religions? If a nice gay couple are refused marriage by a government official who is a Baptist acting out of religious devotion, how does this affect the Unitarians? Is it because that nice gay couple might be Unitarian?
    While there may be some LGBT folks getting married out of religious devotion, I’m guessing the law was more intended to be immunity for religious fundamentalists who want to violate equal protection, or make wedding services scarce.
    And since that law exempted county clerks, I’m not sure if the church would support it considering that Dallin H. Oaks called out Kim Davis, and Oaks seems like the main proponent of the Church’s push for this kind of Religious Freedom.

  4. Rich JJ: you could have a situation where a Jehovah’s Witness running the only open restaurant in town refuses service to uniformed US military personnel, for example.

    The church spox who talked about “layers of religious freedom” was instructive, although perhaps not in the way that he intended. There are certain core freedoms that derive from the Free Exercise Clause; there are other “freedoms” that are really just violations of the Establishment Clause.

  5. Excellent food for thought. There is no real religious freedom without the Establishment Clause.

  6. completely agree, Steve — Establishment Clause is essential. Otherwise you get religious freedom Russian style — you’re free to be Orthodox.

  7. Loursat says:

    It is hypothetically true, as Mark B. says, that every free exercise case can be turned around and expressed as an establishment case. In practice however, there are well-developed legal rules that draw lines between the two clauses. The lines are not perfect, but they’re quite rational. The opinion in the Mississippi case does an unusually good job of explaining why this is an establishment case and not a free exercise case.

    The religion clauses are brilliant because they are in tension. Free exercise and the prohibition on establishment work together to protect us. If we’re honest, keeping both clauses in view helps us see others’ needs as well as our own. And that helps us compromise, which is what LDS leaders keep saying they want us to do in conflicts over religious liberty.

  8. “I suspect that American Mormons’ lack of understanding of the Establishment Clause is in large part the result of their adoption of mainstream American conservative views…”

    I, on the other hand, “suspect” to the point of personal certainty that the vast majority of American Mormons, and Americans in general, “lack [] understanding of the Establishment Clause” because they haven’t read the Constitution and don’t follow Supreme Court jurisprudence. Most Americans can’t name even one current Supreme Court justice. Given that, it’s difficult to believe that they would develop a nuanced understanding of the complex interplay between the five freedoms of the First Amendment, many of which often are at odds with each other.

  9. “The religion clauses are brilliant because they are in tension.” Exactly.

    I once heard an explanation that the free exercise is about protecting individual religious expression, and the establishment clause is best understood as a sort of equal protection clause specifically for churches rather than for individual church members. I think that makes a good deal of sense.

  10. Mark B: One interesting thing to remember about free exercise accommodations is that they have to be “administered neutrally among different faiths” and they’re not supposed to burden “nonbeneficiaries.” (See Cutter v. Wilkinson). So the government can’t grant an exemption for one religion and one religion alone. So on the Sabbath cases you briefly mention, those are actually quite split. The Sabbath cases say that employer/governments are supposed to accommodate religious holidays in their time off calculations to the extent it doesn’t burden third parties — but when Connecticut passed a law saying that every single religious person had an unqualified right to take off whatever day was their Sabbath, the Court found that was an Establishment Clause violation because of how strong a benefit it gave to Sabbatarian religions alone, and how severe a burden it wreaked on all non-religious employees.

  11. Many members of the Church who are legally minded, myself included, ascribe to originalism as a theory for interpreting the Constitution. And there is a very strong historical argument to be made that the Establishment Clause was not intended to limit state power at all and that it only prevented the establishment of a state religion. So I suspect that many Mormons reject the modern Supreme Court doctrine of a strict separation of church and state as an artifact of more modern anti-religious (and particularly anti-catholic) bigotry. (See the history of state Blaine Amendments for more on this but separation of church and state was primarily used to stop state aid from going to Catholic schools even though most public schools were protestant at least to some degree or another). I suspect hostility in part because it was used to subtly prop up certain faiths at the expense of others.

  12. For all the talk of how members skip the establishment clause, this post skips the history of the establishment clause, as well as the context of church leader’s quotes. 1- The establishment clause and the free exercise clause were NOT opposites when the Bill of Rights was passed. ( A good overview of the evolution of the Bill of Rights is “The Bill of Rights” by Akhil Amar). The establishment forbade congress from both establishing and disestablishing the religions at the state level. (Hence the language “Congress shall make no law an establishment of religion …) many states at the time had a state sponsored religions. I believe the last state to disestablish was Massachusetts in 1830 (more or less. I’m pulling from memory.) So, the modern context of what the disestablishment clause was just did not exist. 2- Joseph Smith wanted a theodemocracy and there was clearly NOT a separation of church and state. Buchanan sent out an army in part because the secular United States was suspicious of the theocracy out west. It is ironic that now Buchanan is now the force of establishment while now the theocratic Mormon’s believe in the separation of church and state. And I would invite anyone to read the full speech by Elder Penrose that was linked in the article. Most of that speech is about how the constitution protects religious practice and not just religious belief, that is traditionally seen as a “free exercise concern.” Casting him as an advocate of the “establishment clause” in the 20th century sense is not supported by the speech. 3- The post fails to acknowledge that many problems of violence against religious minorities are actually caused by secular concerns. Both Muslims and Mormons were persecuted, not because they were praying to the wrong God, but because they gave strong critiques of the appropriate role of religion in the public sphere. As William T. Cavanaugh documents in the book “The Myth of Religious Violence” Muslims are persecuted in part because as a community they have not come to embrace the separation of church and state, one of the holy creeds of the west. Mormon’s were persecute in Missouri, not because we got baptized in the wrong faith, but because of economic, political and social reasons. And returning to President Buchanan, part of the battle cry was against Mormon’s was the fact that we did not have a separation of state. Part of the Utah Constitution now insists on the separation of church and state. This is not because Mormon’s changed their mind but because they were forced. I agree we shouldn’t skip the establishment clause, but can we also not skip the history of the establishment clause and acknowledge the fact that secularism has its casualties too?

  13. justapunkkid says:

    Sorry, my mind was working faster than my fingers when I typed my comment and I now see I skipped words every now and again. Anyway, hope there is some intelligible thought in what I wrote.

  14. You make good points. Someday I hope to write a comprehensive article on all of this. It’s true that the Mormons ALSO saw “free exercise” much more robustly than has been interpreted now — particularly the practice point you raise. And it’s true that they were trying to, in one sense, avoid the Establishment Clause by leaving the United States entirely and forming their own government. They went to Utah to flee the US, only to have it be annexed as part of the Mexican War.

    There’s also no question that the government was also committing gross free exercise violations here, I just chose not to emphasize that angle in this post.

    The key point I’m trying to elicit — that the 19th century Mormons sincerely believed that the federal government did not have the authority to interfere in their religious practice SO LONG AS THEY WERE NOT HARMING OTHER PEOPLE — that’s a really, really key point. Elder Penrose was saying, essentially, that all polygamy was voluntary and such consenting sexual relationships were simply none of the government’s concern; that the government’s objections were derived from Christian/religious morals to which Mormons did not ascribe, and the government couldn’t mandatorily enforce them consistent with the religion clauses. That “religious liberty should do no harm” is the key point of commonality between past and modern arguments I’m trying to draw out.

    And I do think the Mormons would have agreed with that point, even if they had succeeded in creating a theocracy. Of course the tendency of groups in power is to adopt majoritarian moral law, and so the separation would not be as strict as we imagine it today. But the Book of Mormon and Articles of Faith and Doctrine and Covenants are all rife with this idea of agency and not forcing people to believe — the evidence I’ve seen so far is that those ideals would have been upheld, even in a purely-Mormon Utah. But more research is needed.

  15. That sounds like a very interesting paper and I hope you write it. I would also like to thank you for your well thought out response to mine.

    I still do have two concerns with your approach. 1- You don’t seem to consider that someone could be in favor of both agency and against secularism (or a separation of church and state). I think Elder Penrose, Joseph Smith, D&C and The Book of Mormon are all examples of a religious state that seeks to protect the rights of all people. For example, Elder Penrose said in his talk, “With the establishment of religion, then, Congress has nothing to do. Congress cannot set up a religion, nor can it pass any law respecting an establishment of religion—that is, to prevent its free exercise.” Contrary to 21st century readings, Elder Penrose does not see the establishment clause and the free exercise clause as opposites that keep the other in tension. Rather, he reads the two the way we read the rest of the first amendment, as points that reinforce eachother (no one is pitting free speech against freedom of the press). Elder Penrose recognizes that there are limitations to all rights. After all, free speech does not protect yelling “fire” in crowded theatre, and religious liberty does not protect human sacrifice. Again, there is no counter clause in the first amendment to free speech to prevent someone yelling “fire” in a crowded theater and for us to be able to deduce that there ought to be limitations. So I think Elder Penrose does not see a separation of church and state as a requirement for fairness and liberty to be established, rather, he recognizes that all rights when taken to an extreme can go to far. I see similar beliefs in Joseph Smith, D&C and the Book of Mormon. Joseph Smith wanted protection of all religious groups and freeing the slaves while simultaneously campaigning for a theodemocracy . Zion as described in D&C was a metropolitan vision where people of many different sects and creeds could come together, however, it was also not a secular vision. The Book of Mormon is the most striking. Sure, there are scriptures about “freedom of belief” but Benjamin was a prophet king. Alma was both Chief Judge and High Priest simultaneously. Morality was hardly a back seat concern for the narrators in the Book of Mormon. Things like agency and freedom to believe co-existed in a state that had no separation wall between church and state. Rather than the either or that your post and follow up comment suggest, all the above seem to want a both and approach.

    My second problem is I think you are too quick to blame discrimination and oppression on Christianity. You appear to be making the case that if only there was a more robust establishment clause doctrine during the polygamy debates, the Supreme Court could have saved Mormons from Christian prejudice. But in the Reynolds case the Supreme Court was more concerned that Mormons were acting like non-Western peoples. Sure, polygamy didn’t square with 19th century Christianity, but it also didn’t square with enlightenment values of western civilization’s superiority either. Also, in spite of our robust establishment clause doctrine polygamy is still very much a controversial issue. If there is not the consensus to legalize consensual polygamy 2016, even as traditional Christian morality has its weakest hold on the culture, I find it difficult to believe that the primary motivating factor in opposing polygamy was Christina morality. This approach reminds of me of Dawkins and Hitchens when discussing leaders like Joseph Stalin. Rather than admitting “sure, atheism has it’s bad apples too…” they actually try to argue that Stalin was religious, and is yet another example of religious extremism run amuck! Likewise, the US Federal Government was equally concerned with Mormon Polygamy and Mormon Theocracy. The people who were invoking the need for religion to be separated from government, law making and the public sphere were the people with the army. The people advocating that religion had a place in government, law making and the public sphere (with of course some limitations) are now the people you are holding up as the paragons of the virtues of the establishment clause. I think both sides would be perplexed. I think your bigger problem is you are trying to fit 19th century actors into 21st century debates and run the risk of “proof texting” (for lack of a better term).

    That said, I do hope you write that paper and thank you for giving me something to think about. This subject is a bit of a hobby horse of my own and you have helped me think and refine some of my thinking.

  16. The length of Jason’s comments reminds me that lawyers get paid by the hour. :-D

  17. Jason, I think you’re reading things into the post that aren’t there. Carolyn never said that free exercise wasn’t important, or that it was an either or choice between free exercise and anti establishment, nor that anti establishment means that morality doesn’t play any role.

    Your theory of opposition to polygamy being based on enlightenment values, not Christian morality is interesting, but certainly not more plausible than the idea that it was based on Christianity. But more importantly, the idea that you can draw a neat distinction between the two is questionable. To the republican crusaders that led the fight against polygamy, I doubt that they saw much of a difference between Christian morality and the superiority of western culture. The neat distinction between the two is at least as much “trying to fit 19th century actors into 21st century debates” as any argument Carolyn made, probably more. The fact that people oppose polygamy now does not mean that people who opposed it a century ago did for the same reasons.

  18. Cynthia- too true. Maybe I was destined to be a lawyer. Although in defense of other lawyers, I am particularly long winded and have been since birth. Well, or at least since I was 1 and some months. (And there are many other lawyers who comment on BCC who are much more concise than myself).

    JKC- If I misread Carolyn’s post I apologize. I think Cynthia has me in a box. I say so much I say nothing at all, and many other commentators have made my points better than I have, and with far less oxygen. So let me say this: I actually agree with everything you said. My apologies for carrying on too long. Thanks again to Carolyn for the thought provoking post, and I really do hope she either writes an article or further blogs on the subject in the future.

  19. I appreciate that. I’m an equal opportunity first amendment geek, so I definitely have no intention of skipping over free exercise. But the point of a blog post is to present one idea, not a treatise.

    And your claim of me “proof-texting” a bit is entirely fair. In no way do I consider the people I quoted to be “paragons of the virtues of the establishment clause” — the 19th century legal and cultural and religious context was way different than the 21st.

    My point is more that early Mormons recognized, by virtue of their minority position, that religion interfering with government could be just as destructive to overall religious liberty as government interfering with religion — and that’s a point we could stand to be more cognizant of in the present day.

  20. I think what might raise some hackles is a sense that cautioning against religious interference with government suggests that government should somehow be hostile to religion or religious influence.

    Is it fair to say that the issue is not necessarily religious influence as much as it is sectarian influence? I mean, to the extent that certain core values of our constitution have religions origins or aspects to them (individual worth, equality, fairness, etc.) religious influence in that sense is not a problem, right? But to the extent that government officials are taking sides on issues that divide religious sects, that is obviously a problem.

  21. Though, having said that, I suppose that the line between sectarianism and religion is a murky one. One person’s religious influence is another person’s sectarian influence, as Reynolds pretty clearly illustrates. I just wonder if there is a way to assuage the concerns of those who think (wrongly, in my opinion) that secular government means government hostility to religion.

  22. Carolyn, well said. We have a heritage of reliance upon the Establishment Clause to keep our little religion safe from the state. It would be strange to reverse course.