The Nephites in the time of Alma and Korihor apparently had principles of law that recognized the importance of religious freedom, like our First Amendment free exercise guarantee. But the nature of that freedom–what it protected, the reasons they gave for it, and how they thought about it–were different from our concept of religious freedom.
This post is a follow-up to Michael’s #BOM 2106 Korihor post and the discussion that followed. Michael lays out the case for his observation that there is a tension between narrator’s (either Mormon or perhaps the author of whatever source he used) heavily emphasized assurance in Alma 30 that Nephite law codified religious freedom, and the fact that Korihor is arguably arrested for blasphemy or heresy rather than some non-religious crime, and is condemned by Alma, in the presence of the Chief Judge, for blasphemy or heresy rather than for some non-religious crime.
In the comments, there was a fair amount of discussion about what was the nature of the Nephites’ civil government, with some making the argument that it was a theocracy under which the Mosaic law was the civil law (and therefore blasphemy was a civil crime, not just a religious crime), and others pushing back against that assertion on the grounds that whatever we think is the law of Moses, as it is presented in Deuteronomy, is likely very different from what the Nephites called the law of Moses. Clark did a follow-up post over at T&S on that issue.
One of the points raised in the comments was that we should be careful about interpreting the Nephite law’s commitment to religious freedom as modern enlightenment-style separation of church and state. I think that is correct, but it did prompt me to go back and take a closer look at the narrator’s description of the Nephite version of religious freedom.
On that closer look, I took note of what I consider four interesting, maybe unusual points.
- Religious Belief is Protected, But Religious Practice is Not.
First, the narrator identifies religious belief, not religious practice, as the protected right. “There was no law against a man’s belief,” but actions, such as murder, robbery, and adultery were still punished.
As one of the comments on Michael’s post observed, the distinction between belief and practice is basically the approach that the Supreme Court endorsed in the Reynolds polygamy case: Reynolds could believe in polygamy all he wanted, but he could not practice it, and since the anti-bigamy law regulated his practice, but not his belief, it did not infringe his constitutional right to free exercise. 
The Nephites’ version of religious freedom is is less robust than the religious freedom than we enjoy currently in the United States. Our version of religious freedom protects belief, as the Nephite version did, but it also protects actions motivated by religious belief, at least under come circumstances. The extent to which it does or should protect religious practice as well as religious belief has been contested over the past five decades or so, but at least to some extent, our religious freedom protects religious practice, unlike the Nephite version that protected only belief.
Legal developments in the 1960s pushed the needle further toward protecting religious practice than Reynolds did,  but developments in the 1990s then walked it back a bit.  Currently, the standard federal courts apply under the First Amendment is basically that if the law at issue is a “neutral law of general applicability”–that is, if it doesn’t target religious practice and applies generally to practices that are both religious and non-religious then Reynolds applies, and as long as the law regulates practice, instead of belief, religious freedom does not provide any protection from the law. But if there is evidence to suggest that the law targets a specific religious group, or was motivated by animus against a specific religious group, then the Court applies “strict scrutiny.” That basically means that the law is unconstitutional unless the state can prove that the law is necessary to fulfill a compelling state interest and there is no other way to meet that need that is less restrictive of religious practice. 
This standard is considerably less accommodating to religious practice than the standard that the Court used to apply between the 1960s and the 1990s. Under that standard, strict scrutiny applied any time that the law constituted a substantial burden on a person’s religious practice, regardless of whether the law was neutral and generally applicable. Substantial burden, in this context means that it forces a person to choose between violating his or her religious belief in order to avoid punishment or to obtain a benefit he or she would otherwise be entitled to on the one hand, or staying true to his or her religious belief, and accepting punishment or forgoing a benefit on the other hand. 
However, the old standard still applies in a variety of contexts. Congress enacted the Religious Freedom Restoration Act, which basically overruled the Supreme Court’s decision to limit strict scrutiny to cases where the law targets a specific religious group. The Supreme Court held the RFRA to be unconstitutional as applied to the states, but it still limits actions by the federal government.  The Religious Land Use and Institutionalized Persons Act, which the Supreme Court has upheld as constitutional, also applies the same standard against the state in the more limited contexts of state prisons and state zoning laws.  Some state supreme courts also interpret their state constitutions to require the old standard.  And some states have enacted their own versions of the RFRA. 
But while constitutional protections in the United States for religious freedom are less robust than they were under the Warren court, either the current standard or the old standard offers more protection than the Nephite version of religious freedom, because either standard protects religious practice to some degree, in contrast to the Nephite version, which protects only religious belief.
2. Equality Before the Law is the Animating Principle of Religious Freedom.
Second, unlike our modern religious freedom discourse, which usually justifies religious freedom in terms of liberty–specifically liberty of conscience, the reasoning behind the Nephite commitment to religious freedom is not liberty, but equality. The reason why “there was no law against a man’s belief” was because it was forbidden for the law to”bring men on to unequal grounds.” This point is emphasized by repetition: The narrator introduced the idea of religious freedom explaining that laws which “bring men on to unequal grounds” are unacceptable. And then again after explaining that belief was protected, but action is not, the narrator concludes: “therefore all men were on equal grounds.”
This is a little hard to follow, at least to somebody used to thinking of religious freedom in terms of liberty of conscience rather than equality, but the reasoning seems to be similar to our notion of equal protection. The idea seems to be that the law should treat people equally by making distinctions based on behavior, but not making distinction based on identity–things like race, religion, gender, etc.
This difference also explains why the Nephites notion of religious liberty extended only to religious belief, not to action motivated by religious belief. Permitting exemptions to laws that regulate actions only, based on private religious belief, is far more effective at preserving liberty of conscience than is simply prohibiting only laws that regulate belief, but arguably goes against the ideal of equality before the law, because it can allow people to be exempted from laws that apply to everyone else because of their private religious beliefs. As the Court said in Reynolds, recognizing a right to engage in religious practice that the law prohibits “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 98 U.S. 167. The Nephite focus on equality rather than on liberty is, in fact, far closer to the approach in Reynolds than to later jurisprudence.
I wonder if anybody saw the irony that the Justices that decided Reynolds chose, in refusing to recognize protection for Mormon religious practices, to articulate a version of religious freedom that basically followed the version of religious freedom set forth in the Book of Mormon itself. I doubt it.
3. Equality Before the Law is a Religious Mandate.
But third, unlike our notion of equal protection, which is usually justified in terms of the inherent equality of mankind as a secular enlightenment value, the Nephite prohibition against laws that would “bring men on to unequal grounds” was based on explicitly religious values: “it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds.” This basing the law on the “commands of God” probably harks back to Mosiah’s reforms, where he proposed: “we will appoint wise men to be judges, that will judge this people according to the commandments of God.”
This is an interesting point for religious people. It suggests that religious tolerance and religious pluralism are not just things to be endured as a necessary evil given the present necessity of living under a secular government; it suggest that religious tolerance and a commitment to respect freedom of belief, and the notion of equality before the law are themselves inherently religious values, even “commands of God.”
4. Equality Before the Law is Justified as Necessary for Agency.
Finally, the Nephites’ religious commitment to equality seems to be rooted in the value of agency or free will, which is justified in terms of its being necessary to allow people to meaningfully serve God. The scriptural support that the narrator gives for the Nephite’s commitment to equality is a quotation from Joshua: “Choose ye this day, whom ye will serve,” followed by an explanation that “if man desired to serve God, it was his privilege” to serve him. The idea here seems to be that serving God by compulsion is worthless (perhaps an echo of Mormon’s later statements about the worthlessness of doing good grudgingly), so that if serving God is to be worth anything, it has to be the product of free will and choice.
So essentially, the bedrock value of the Nephites’ commitment to religious liberty is freely given service to God, which, in order to be meaningful, must be the product of free will, which in turn requires equality under the law, which itself prohibits laws that punish belief, rather than behavior.
* * *
I’m not sure exactly what to make of the narrator’s analysis of the basis for freedom of religion, but it is clearly different from anything in the law of Moses, at least as it is recorded in our bibles, and it is also different in significant ways from secular enlightenment style liberty of conscience that animates American religious freedom, though it has some of the same values.
I don’t think the Nephite version of religious freedom is necessarily a model to follow, because while the Book of Mormon often portrays the Nephites as the good guys (unsurprisingly, being written by Nephites), the overall story is the tragedy of the Nephites hubris and fall. The Doctrine and Covenants emphasizes this point. but working through the ways that Nephite religious freedom was similar to and different from other notions of religious freedom, such as our own, is probably a worthwhile exercise. If nothing else, it helps us see the Nephites as flesh-and-blood people trying to figure out how to accommodate multiple religious views in their society rather than as one-dimensional benevolent theocrats.
 There’s some textual support for the notion that Korihor was arrested for encouraging adultery, which was a crime, but the word “whoredoms” is ambiguous, and could refer to sexual crime or to idolatry. That issue was discussed in the comments to Michael’s post. I’m not planning to revisit it here, and will likely delete comments that shift the focus to relitigate that question. I will note, though, that the narrator expressly says that “the law could have no hold upon [Korihor],” which to me suggests that Korihor’s crimes were crimes of belief, not action, because otherwise, the law could have hold upon him, according to the explanation that the narrator gives that crimes were punishable by law, even though belief was not.
 See Reynolds v. United States, 98 U.S. 145, 166-67 (1878).
 See Sherbert v. Verner, 374 U.S. 398 (1963). Sherbert was a member of the Seventh Day adventist church. Some time after her conversion, her employer, a textile mill, assigned her to work Saturdays. She refused and was fired. She applied for unemployment benefits, and was denied, because she had been offered work, but refused to take it, based on her religious belief. The Court held forcing Sherbert to choose between violating her religious convictions and receiving a benefit she would otherwise be entitled to was a substantial burden on her religious practice, and that doing so was not necessary to further any compelling state interest, and that it therefore violated her constitutional right to free exercise.
 See Employment Division v. Smith, 485 U.S. 660 (1987). Smith was a member of the Native American Church who worked as a drug counselor. He was fired for using peyote in a religious ceremony, in violation a company policy against use of any illegal drug, applied for unemployment, and was denied because he was fired for misconduct. The Supreme Court sent the case back to the Oregon courts to determine whether the religious use of peyote was a crime in Oregon, because it held that if it was crime, then the law did not protect criminal behavior, relying expressly on Reynolds:
“We have held that bigamy may be forbidden, even when the practice is dictated by sincere religious convictions. If a bigamist may be sent to jail despite the religious motivation for his misconduct, surely a State may refuse to pay unemployment compensation to a marriage counselor who was discharged because he or she entered into a bigamous relationship. The protection that the First Amendment provides to “`legitimate claims to the free exercise of religion,'” does not extend to conduct that a State has validly proscribed.”
485 U.S. at 672 (citations omitted). This was considered to be the death knell of the Sherbert balancing test. But Congress revived it in the Religious Freedom Restoration Act, which codified the strict scrutiny test by statute. The RFRA was later found unconstitutional as applied to the states, but continues to apply to federal action that restricts religious exercise. See City of Boerne v. Flores, 521 U.S. 507 (1997). The Sherbert test also got some renewed vigor in the Lukumi Babu Aye case, cited below.
 See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). The church in this case was a Santeria church in Florida that practiced animal sacrifice. When the church announced plans to build a chapel in Hialeah, Florida, the city enacted an ordinance that made it illegal to kill animals, but then made a number of exceptions to basically permit all killings other than Santeria religious ritual sacrifices. The Court held that the law was not a neutral, generally applicable law, but that it specifically targeted religious practice, and therefore held that the Smith test did not apply, but that the Sherbert strict scrutiny test applied.
 See Sherbert, 374 U.S. at 403.
 See Boerne , 521 U.S. 507.
 See, e.g., Cutter v. Wilkinson, 544 US 709 (2005) (holding that prisoners could sue under RLUIPA to seek accommodation of their religious practice); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002) (holding that by condemning and taking possession of land owned by a church in order to prevent the church from building a complex of church buildings on 18 acres of land owned by the church, the City imposed a substantial burden on the church’s religious exercise, and that the City’s argument that its action were necessary to prevent blight and establish a tax base were not compelling interests).
 See, e.g., State v. Holm, 137 P.3d 726, 738 (Utah 2006) (stating in a challenge to Utah’s anti-bigamy law that “our state constitution may well provide greater protection for the free exercise of religion in some respects than the federal constitution,” but not addressing the issue because even if the Utah constitution provided more protection than the First Amendment, it would do so in polygamy cases because of the constitutional provision “forever prohibit[ing] polygamy).
 See, e.g., State v. Hardesty, 214 P.3d 1004 (Ariz. 2009) (holding that enforcing drug laws against religious use of marijuana did not violate the Arizona Free Exercise of Religion Act).