The Basis of Religious Freedom in the Book of Mormon.

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.[1]

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.

  1. 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. [2]

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, [3] but developments in the 1990s then walked it back a bit. [4] 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. [5]

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. [6]

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. [7] 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. [8] Some state supreme courts also interpret their state constitutions to require the old standard. [9] And some states have enacted their own versions of the RFRA. [10]

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.


[1] 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.

[2] See Reynolds v. United States, 98 U.S. 145, 166-67 (1878).

[3] 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.

[4] 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.

[5] 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.

[6] See Sherbert, 374 U.S. at 403.

[7] See Boerne , 521 U.S. 507.

[8] 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).

[9] 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).

[10] 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).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

  1. Huh. Here’s an alternative reading, which I’ve been thinking about for about a week now and seems pretty clear to me from the text. But maybe I’m mis-reading it or missing something.

    Moroni goes to great lengths to describe the religious freedom enshrined in Nephite law so that he can then tell a story about how the other cities – which didn’t have those laws – were more wise than the Nephites as a result and were able to deal with Korihor in ways that the Nephites couldn’t, due to their laws. The reason Moroni describes the religious freedom laws in such detail is that he’s setting up the narrative so he can editorialize *against* religious freedom laws.

    Moroni says:

    1. The Nephites had religious freedom laws that were extensive and gave a ton of freedom.
    2. As a result of those religious freedom laws, they had a Korihor problem and couldn’t do anything about it.
    3. Then Korihor went to the land of Jershon, where they didn’t have those laws. “But behold they were more wise than many of the Nephites; for they took him, and bound him, and carried him before Ammon, who was a high priest over that people.” (Alma 30:20) They kicked him out (which would have been unlawful under the less wise Nephite laws).
    4. Korihor then goes to the land of Gideon, where they also don’t have the Nephite religious freedom laws. And, since they don’t have those laws there, he’s tied up and dragged before Giddonah, who is both High Priest and Chief Judge, and he is put on trial – which couldn’t have happened under the Nephite law.

    And so forth, as Moroni demonstrates how much easier it is to deal with apostates when your society’s hands are not tied by religious freedom laws.

    The Nephites had religious freedom laws, but, in Moroni’s own words, the cities that did *not* legally protect religious freedom were “more wise.”

    (Note: I strongly disagree with Moroni on this one, to the extent that’s what he’s trying to say, though I nevertheless sustain him and a prophet, seer, revelator, etc. Don’t tase me, bro.)

  2. Clark Goble says:

    DKL, I like a lot you write here but feel like you short change the part on equality. When the text says, “bring men on to unequal grounds,” it’s not at all clear what that means. (I assume this is Mormon saying this, although it’s possible it’s an expansion in the translation or even a quote or paraphrase of something Alma wrote) As I see it the next verse is pretty key, “for thus saith the scripture: Choose ye this day, whom ye will serve.” This may be paraphrasing 1 Samuel 8 where Samuel is warning them not to pick a king. Interestingly this is usually seen as part of the deuteronomist tradition even though it’s dated to the time of Hezekiah with it’s main form taking place under Josiah — although these parts are often seen as reflecting a republican source and a monarchial source. Anyway 1 Samuel 8:18 says, “and yes shall cry out in that day because of your king which ye shall have chosen you; and the Lord will not hear you in that day.”

    My sense, perhaps incorrect, is that this equality is a conflict not of egalitarianism but of whether you serve God or an earthly king. That is the King acts as a block for a freedom to worship God. This would be in keeping with both Mosiah’s words but also Alma’s.

    That said, Mosiah when he gives up his Kingdom emphasizes equality which is far more egalitarian. (Mosiah 27:2-5) So that’s quite possible the meaning as well. When Mosiah makes that command he seems to tie equality to persecution. Even in this sense though I’m not sure we should call it equality before the law in modern senses. There may be overlap, but there seems something else is going on. I say that because in the previous chapter when people are brought to Mosiah because of iniquities (presumably religious behaviors) Mosiah refuses to judge them but hands them to Alma. (Mosiah 26:11-12) But the result is what we’d call excommunication. This seems a pretty huge innovation and certainly sets the stage for what happens later in Alma 30.

  3. Elder Oaks, at least, has been pretty vocal with his disagreement over Employment Division v. Smith, and disappointed that Scalia, who Elder Oaks respected, would write such an opinion placing such limits on the practice of religion. I’ve always found it interesting that it was three dissenting liberals on the Supreme Court who wanted more freedom of religion and the conservatives who wanted to limit those freedoms.

  4. Clark Goble says:

    signs, I’m not sure the laws were that different. It appears that we have a system of mayan city-states so it’s true they likely are somewhat independent. However all the ones that follow the Mosiah reforms seem to be unified under a chief high priest and chief judge over all the city states. So I’m not sure their laws are as distinct as you suggest. Also, if I read Mosiah 26 correctly the main reform of Mosiah/Alma is a move towards excommunication as punishment. That may mean that kicking Korihor out of the city was seen as part of that excommunication move. (It’s not clear from the text what the excommunication actually entails in practice beyond being fairly ineffective)

  5. Thanks. A real contribution. I do think Clark Goble (above) has the better part of the equality discussion (meaning that I have generally thought about the “equal grounds” phrase in the context of how a king or monarchial system affects people and choice–clearly an issue in the Book of Mormon). Also, you say “I wonder if anybody saw the irony” regarding the Reynolds decision, and I can report that while I was not around to read the decision when it came out (!), I have long appreciated the irony and used the point in discussion, arguing that Reynolds was rightly decided in terms of practice vs belief, although wrongly decided in that the laws in question were motivated by animus toward the Mormons and plural marriage.

  6. I don’t know, sngm. The explanation seems almost like an apologetic to excuse the fact that they don’t immediately arrest him, as if Mormon (or whoever the narrator here is) thought his audience would be critical of the failure to immediately arrest him, so he has to give context to explain why they couldn’t just immediately arrest him, and the fact that he connects it back to “the commands of God,” and “the scripture,” suggests to me that he sees the Nephite recognition of religious freedom as a good thing.

    Though, I think you are right to recognize a tension between the explanation of religious freedom and the statement that the people in Jershon were “more wise.” Perhaps one of these is Mormon speaking and one is an earlier narrator speaking.

    Incidentally, I think it’s Mormon here rather than Moroni. Also, I’m not sure that either Mormon or Moroni would claim to be seer. In the Book of Mormon seership sense to be linked to the possession and authorized use of the interpreters. And while Motion at least appears to have had the interpreters, since he included them with the plates, there’s no indication that Mormon our motion used them. (On the other hand, I suppose you could infer or speculate that he must have used them in order be able to read the records. Language shifts being what they are, it would be unusual if Nephite language from 1000 years ago would be intelligible to Mormon, unless he had either a solid education in ancient languages our divine help.)

  7. Clark Goble says:

    Christian, I should have also brought up Joshua 24:15 which is what the second verse is certainly referring to. “And if it seem evil unto you to serve the Lord, choose you this day whom ye will serve; whether the gods which your fathers served that were on the other side of the flood, or the gods of the Amorites, in whose land ye dwell: but as for me and my house, we will serve the Lord.”

    This is also partially why I think all these conflicts are really about conflicting religion. This would line right up to how the Nephites would have interacting with pre-existing mayan/olmec religion if Guatamala/Mexico is the setting. But the scriptures that get quoted often are so tied to both idolatry in Israel but also the connection of idolatry to Kingship. (Remember that Josiah’s reforms were largely purging Judaism of syncretic mixing with Canaanite idolatry)

    So while Korihor is almost always presented as some sort of secular humanist I suspect he’s actually in line with Nehor and conflicts with the indigenous religious traditions.

    JKC, I think it clear they aren’t quite sure what to do with him. Nehor takes place before the Mosiah reforms of kingship and practice of the law. (That key reform in Mosiah 26 that may change how the Law of Moses is seen) We know there are continuing problems with the Nehor group. (See for example Alma 14 where Alma and Amulet are imprisoned by a judge who follows the Nehor tradition and we know in Alma 21:4 that it’s a large movement)

    The way I’m coming to interpret this is that there’s a kind of religious freedom, albeit very limited. But it’s more just religious liberty in the sense that there’s not a theocracy. That is I think that as a practical matter it’s just acknowledging the reality of a country side filled with city-states that are all somewhat independent even if economically tied together. It appears that the Nephites are a minority – sometimes even within the same city. (See for example Mosiah 26:1-6 where they become more numerous after Mosiah is no longer king) The reform of Mosiah was the rise of judgeships and the end of an attempted kingdom. But the biggest change is removing most punishments and switching to a casting out of the church.

    To the issue of the narration, it would make sense that Mormon might be not entirely clear on how these Mosiah reforms work in practice since he’s living centuries later. There’s probably only fragmentary texts about it so he’s going by a more superficial understanding. Given that the culture of his Nephites is so different we shouldn’t be surprised to see Mormon not understanding why they don’t just act and solve things. Mormon/Moroni are well into the classic period of mayan culture if the setting is correct – possibly as some apologists claim the collapse of the Nephite culture is tied to the rise Teotihuacan-backed dynasty. Unlike the loose city states of the pre-classical era Mormon lived in an era of political consolidation and empire. It’s also interesting that Mormon doesn’t appear to initially identify himself with the Nephites. (See Mormon 2:1 where he talks about “their armies” relative to the people of Nephi rather than “our armies” and the whole discussion of peoples in chapter 1 suggests a very different culture and political system)

  8. sgnm – Interesting point that the Nephite cities may have had different laws regarding religious freedom. That would seem to explain why Jershon and Gideon could throw Korihor out when Zarahemla could not per religious freedom law. In my BOM reading it always seemed contradictory to me to say that there was no law punishing a man’s belief, since throwing someone out of a city seems pretty punishing. I always assumed a “federal” Nephite system with uniform laws. Alternatively, you could make a case that the law allowed for private beliefs but not publicly promoting those beliefs, but that would seem to get more at a church disciplinary enforcement action rather than a civil enforcement action. My reading has always been that the Nephite system was much more theocratical than our current day system and that it provided much less religious freedom than ours, and I’m not sure I’m persuaded differently here.

  9. “Incidentally, I think it’s Mormon here rather than Moroni. Also, I’m not sure that either Mormon or Moroni would claim to be seer.”

    I never can keep those two straight. My bit about sustaining them was mostly hedging my bets in case anyone questioned my loyalty ;-)

  10. Clark (and Christian),

    That strikes me as not unreasonable. And if I’m not mistaken, Mosiah discusses equality/inequality back in Mosiah 29 as well as part of his discussion about why the risk of a bad king outweighs the benefit of having a good king.

  11. Clark Goble says:

    Bro B, again to us throwing someone out of a city may seem like punishment, but compared to the punishments specified in the Law of Moses (even admitting the fuzziness regarding Deuteronomy) is pretty minor. They might not consider it punishment at all but merely disassociation. That’s why I think we have to be careful thinking in terms of US 1st amendment issues.

    Of course what’s even more interesting is that you have this period of Mosiah reforms being read by a guy highly isolated from them hundreds of years later which is then translated by a guy even more isolated from the culture. Things are apt to get shifted around a lot in that transition. So we’re reading history as seen by an editor/narrator who almost certainly is shifting the story around based upon fragmentary texts. While in the other thread I mentioned Rob perhaps reading the text too much through his own theological presuppositions, we should note that Mormon is almost certainly doing the same sort of thing. Now 21st century America is quite a bit more alien to Alma’s culture than Mormon likely is. But there’s still a pretty big gap that will change how he reads Alma. And both will read the brass plates very differently than Lehi would have.

  12. Clark Goble says:

    JKC, I guess were I to give a one sentence summary of my position it is that we’re in a pluralistic society with a lot of tensions and equality is more or less just trying to mitigate those tensions.

    If I’m right and we should read most of Alma through this lens of Alma’s people as a religious minority with syncretic religion in their city-states and completely different religion in more distant cities I think it affects how we read the religious sections. (Zeezrom in particular becomes more challenging I think) It’s interesting perhaps rereading all of it in terms of both the history of Jerusalem when the Jews didn’t dominate (before Josiah, during the Hellenistic period or even during Roman occupation) but also in terms of Jewish conceptions of syncretic religion (the norther refugees Jeremiah condemns or the tensions between Jews and Samaritans).

  13. Forcibly binding someone up to be interrogated before authorities simply for persuading people to believe differently about god is not religious freedom in any sense of the word.

    Telling god to destroy someone’s physical power of speech (provided that that is even possible) simply for asking for stronger evidence behind one’s claims about is not religious freedom.

    In no logical way, shape, or form can it be construed the people in Alma 30 actually respected others’ religious freedoms. Spare me the mental gymnastics and smoke and mirrors explanations.

  14. I would be very interested in seeing a comparison between religious liberty as we understand it now, with that of the BoM *and* that of early 19th century America (the context in which and for which it was translated). Such an endeavor, while interesting, would fall WELL outside my area of expertise.

  15. I don’t know how close Reynolds would have been to the views of religious freedom in the 1830s, but I suspect it would not have been too different from Reynolds.

  16. Aussie Mormon says:

    Brad L: The whole conversation/debate between Alma and Korihor is about the existence of God. Korihor explicitly asked for a sign (vs. 43 and 45), and was told what that sign would be (vs. 47). Korihor said he still wanted it (vs 48.). This was not a legal punishment for not believing in God.

    In regards to your first point, look at JKC’s first footnote. There is some evidence that is wasn’t just for telling people to believe differently. But JKC said we’re not allowed to discuss that.

  17. Clark Goble says:

    Considering there was an extermination order made against the Mormons and lots of anti-papist and anti-semitic actions in early 19th century US practice I think freedom of religion was more theory than practice.

  18. Rob Osborn says:

    I keep reading the Korihor story and I am more and more convinced that blaspheme was a punishable crime if provable. This according to their form of the Law of Moses which was the principle foundation of their laws. In verse 30 it states that Korihor “went on to blaspheme”. The questioning that commences is done with the detail of questions that deal with his lying and blaspheme against God. Belief and actions of religious freedom are not what Korihor is bound and brought for questioning for. Its his lying and blaspheme that has given the chief judges and high priests to take note. This is what he is interrogated for. The Lamanites in Jershon were more wise because they saw right off that Korihor was in breach of law for blaspheme and had him taken away out of their society. The Nephites on the other hand werent so wise and entertained him and many believed his lies. They did not readily see his blaspheme because of their own wickedness.

    This isnt about religious freedom, equality, etc. This is about the charge of blaspheme. Blaspheme in the Law of Moses was a crime and punishable. Note that the distinction is made that Korihor was free to teach incorrect or evil doctrines and the law could not hold him on that. But, his questioning by the law after being brought before Alma was not so much about his beliefs but really about his lies and getting a confession of blasphemy which was punishable.

    For us we think it strange but we are also not living under a law where blasphemy is at all punishable by law. I believe much of their law was very similar to what we have with the main distinction that their law required an observance and reverence for deity. This didnt mean one would had to believe a certain way about God but rather that God wasnt blaspgemed against. For Americans we have adopted the corrupt belief that the word “god” is a religion and should not be a part of law. The Nephites would probably see us much the same way we see them as lacking some form of religious freedom or perverting it in some manner.

  19. Brad, I would tend to agree with you that Korihor’s arrest does not comply with our modern sense of religious freedom in any meaningful way.

    But that’s not the focus of this post. This is not about whether the Nephites lived up to their ideals in practice, it’s about their embrace of the ideals themselves, according to Mormon’s description of their law and how that differs from and compares to the ideals that we embrace.

  20. Clark,

    I’m not sure I follow you competent on the equality point. I agree that in other points of the Book of Mormon, equality is linked with monarchy. But here in alma 30, it’s linked specifically with the distinction between protected belief and unprotected action. I don’t think those two are incompatible.

  21. Also, Clark, I generally agree with your last point, but a lot of what you refer to might be more due to the fact that the first amendment was before the post civil war era, seen as adopting only to federal action, not private action or state action.

  22. Rob, we’ve already had that discussion. See footnote one in the post. I’ll delete further comments that focus on that issue instead of on the issue discussed inn the post.

  23. Deborah Christensen says:

    Points 3 and 4 seem to be supported by the Doctrine and Covenants were it says

    “77 According to the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles;
    78 That every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.”

  24. Clark Goble says:

    JKC, of course changing jurisprudence, whether before the civil war or after the changes of FDR or the great society, are of course very important. In particular you can look at the period of Nixon and see pretty big changes in how a lot of these freedoms changed. My sense is that the brethren want a view of religious liberty that has been promoted during just a relatively short period of the late 70’s through the present. Even then it’s hardly been unanimous and often reflects more the fact that the religions that once dominated are feeling under pressure.

    Regarding equality and the monarchy, more or less what I’m saying is that protection of belief is a practical pluralism due to conflict between religions. This may have some egalitarian points, as it sometimes does for both Mosiah and Alma, but I think it more often is just tied to the theology of the monarchy. My point is just that the bits about belief in Alma 30 don’t necessarily tell us as much as they appear to at first glance.

  25. I think it’s more like mid 60s through late 90s, but I think you’re essentially correct.

    On the equality point, I think you’re right that these verses are pretty ambiguous. For purposes of this post I basically took then at face value, but it’s good to keep in mind that there’s a lot going on in the background, and that they may not be so simple.

  26. Clark Goble says:

    I was thinking about this a bit, and it’s worth noting that Edmund Burke’s views of freedom were quite different from the way many (especially those in the individualist strain of progressivism) tended to think about it. Of course Burke’s and Paine’s arguments in the 1890’s would likely have been known at the time of the translation. Burke’s freedom was very much in terms of social freedom where freedom only made sense and was provided by society. (Against say Rousseau) For Burke (as opposed to Paine) freedom is only possible due to the restraints provided by society. I halfway wonder if we aren’t getting something like that from Mosiah/Alma (even though in other ways they are closer to Paine)

  27. Clark Goble says:

    For those not familiar with Burke this short bit on his conception of social freedom against individual freedom is worth reading. (And to be clear I’m not arguing Joseph copied Burke nor that Burke is right merely that he offers an interesting conceptual scheme through which to reread the Mosiah reforms.

  28. I’m a bit late to this party, but I wonder if you’ve read Jack Welch’s “Legal Cases in the Book of Mormon”? His reading ought to be considered, and I wonder to what extent your thesis might be altered by some of the perspectives he illuminates in his chapter on Korihor’s trial.

  29. Clark Goble says:

    CC, I confess it’s been years since I last read it and I don’t remember it terribly well. What do you think is relevant here? I vaguely recall finding it very interesting but being a little skeptical that much Israelite theory would have persisted 500 years with a lot of intermixing with indigenous populations. Again, going by very distant memory I recall a lot of the elements he brought up being fairly late and not necessarily even relevant for Lehi or Nephi. (But I may be misremembering)

    I’d love to hear your take though. (I’m afraid I’m about to go to sleep so I don’t have time to look it up tonight)

  30. Clark Goble says:

    Oh, that’s a recent book. So I was thinking of a much earlier paper from the early 90’s. I’ll check it out when I have a moment.

  31. CC, Thanks for reading and commenting. I had not read this book of Welch’s, but I read the Korihor chapters last night. I don’t think he really says much of substance on the religious freedom issue. He draws a distinction between thoughts, words, and actions, with words as a sort if in between category, so that’s an interesting take on the division between thoughts and actions made in the text and in the Reynolds case, but I don’t see Mormon making that point in the text, so while it’s worth considering, I don’t think we should place much weight on it.

    In general, Welch seems much more interested in arguing that Alma acted legally under Deuteronomic law than in exploring what the Nephite concept of religious freedom was. In fact, given his three part categorization of beliefs, words, and actions, Welch characterizes the Korihor issue as an issue of freedom of speech rather than of freedom of religion. So he’s not really addressing the same issue I was trying to explore in the post.

    I also think a major flaw in Welch’s analysis is that he doesn’t address the fact that the Deuteronomic law as it is recorded in our bibles was more a product of post-exilic developments, or the fact that all religious and legal systems change and evolve over time, and thus the likelihood that the Nephite legal system most likely looked very different from the Deuteronomic law that we have in the old testament. I mean, it’s an interesting intellectual exercise to apply a set of facts to a foreign legal system, but it isn’t particularly relevant or insightful without making a convincing case for that law’s applicability to the situation, and I don’t think Welch makes a case for applying Deuteronomy to Korihor. He assumes that it applies, but doesn’t make any argument to support that assumption.

    But maybe I’ve missed something. Is there something in particular in Welch’s analysis that you think contributes to the discussion that I’ve missed?

  32. Clark Goble says:

    Without commenting directly on Welch’s book which I’ve not read, I find the Deuteronomy bits interesting. Even if elements of the Deuteronomist view was developed in some fashion at the time of Lehi it’s worth asking whether Lehi would have them. While I’m sympathetic to those who see Barker’s reconstruction of pre-Deuteronomist Israel as pretty speculative and somewhat problematic there’s a second problem. The arguments for Lehi being from the northern kingdom and the brass plates being northern scriptures rather than southern ones seem strong. Given that, would the brass plates reflect in the least the Deuteronomist point of view? Second while some argue Laman and Lemuel reflected the more pro-Jerusalem view and potentially even the Deuteronomist perspective, the Nephites separate themselves from that. Finally if there’s one things that’s clear, its that whatever law the Nephites had, the Mosiah reforms fundamentally changed Nephite culture in ways completely at odds with the Deuteronomist laws. Korihor is a perfect example of that since to the Deuteronomist he’s broken major laws punishable by death. Yet those don’t even pop up as a consideration to Alma.

    And all those problems ignore the whole question of how Nephite culture undoubtedly evolved over 500 years in America undoubtedly mixing with other cultures. We look at evolution of Jewish thought in the ANE and we see the early Deuteronomist reforms being influenced by Assyria. We see major rethinking during the Babylonian exile and arguably some major metaphysical and cosmological shifts in that time on things like angelology and creation. Then during the Hellenistic era we see things shift much more. And then in the Roman era we have the development of Rabbinical Judaism. Why wouldn’t the Nephites evolve as well?

  33. My general point was more that you were doing a pretty good and in-depth analysis of the legal happenings in Alma 30, but were missing the major scholarship on that very issue as part of your analysis. I didn’t mean it as a criticism, but I did want to point it out.

    And I think that Welch’s book doesn’t try to argue that Nephite law was identical to Deuteronomic law—as you’ve point out that would be a very irresponsible position to take, scholarship-wise—but that if we assume that there is some continuity between the two schools, coming from some original source(s), that might be an angle worth exploring. Of course they represent two traditions separated by hundreds of years and thousands of miles, but if we believe the Book of Mormon narrative (and Welch does), there would be some points of contact in both their pasts. I just went and glanced over the first chapters, and he speculates that some form of Deuteronomy, or at least some relevant law portions, might have been extant on the brass plates, for example.

    In any event, he explores the similarities and differences between Israelite law, ANE law in general, and Nephite law, and I wondered if his chapter on Korihor, and indeed his entire project (it’s been several years since I read it through, and if memory serves it does build on itself as Nephite law develops over time), would change or alter your thoughts in any way. I’d recommend the book itself. I don’t agree with many of Welch’s conclusions, and even some of his assumptions, but it was a more than worthwhile read. I just thought I’d point it out since it seems it would be very very relevant to your post here.