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.”