Teaching the "Mormon" Cases

A slightly more academic post than usual:  I'm teaching Law & Religion before a wonderful group of students this semester at Notre Dame, and have just gotten through teaching the so-called "Mormon" cases -- Reynolds, Davis v. Beason, etc.  Reynolds, especially, is useful as an introduction to the belief-conduct distinction, the question of constitutionally compelled exemptions under the Free Exercise Clause, and so on.  But these cases also raise a host of fascinating bigger-picture questions about the relationship between religion and politics, or between the "religious" and "secular" realms, both from the secular perspective and from the religious perspective.

That is especially so if one takes the time to read the 1890 Revelation from Wilford Woodruff, then-President of the Church of Jesus Christ of Latter-Day Saints, which led to the end of polygamy as a distinctive practice of the Saints.  (This is a decidedly generalized description, and none of the terms used therein are meant to be unduly conclusory or suggestive.)  In a recent paper, I wrote that one ought not casually describe the abandonment of the practice as a simple secular response to state pressure, since the Church itself describes the doctrinal shift as a product of religious revelation.  (To be clear, this was said by way of defense of the Church, not as an argument that since the change was religious, we shouldn't care that the state helped bring the Church to this pass.)  That is true, but also a little too simple.  What is striking about the Revelation is the extent to which the Revelation is an effort to grapple religiously with a set of secular facts.  Woodruff describes the Lord as having asked the Saints the following question:

Which is the wisest course for the Latter-day Saints to pursue—to continue to attempt to practice plural marriage, with the laws of the nation against it and the opposition of sixty millions of people, and at the cost of the confiscation and loss of all the Temples, and the stopping of all the ordinances therein, . . . and the imprisonment of the First Presidency and Twelve and the heads of families in the Church, and the confiscation of personal property of the people (all of which of themselves would stop the practice); or, after doing and suffering what we have through our adherence to this principle to cease the practice and submit to the law, and through doing so leave the Prophets, Apostles and fathers at home, so that they can instruct the people and attend to the duties of the Church, and also leave the Temples in the hands of the Saints . . . ?

It seems to me that professors who teach law and religion ought to include the Revelation in their reading materials. 

Of course Reynolds is useful for doctrinal reasons, but adding this material opens up a far broader set of questions, many of which have broader resonance both for the question of Free Exercise accommodation and for the relationship between religion and the state in general.  Surely our thoughts on those issues will be influenced by our sense of what it means for the state to wrong religion, whether we should speak in terms of a state altering religious practices, and so on; and from the other side, our sense of what religions should or should not seek from the state may depend on our sense of how doctrine is formed, what it means to have a "religious" as opposed to a "secular" response to events in the world, and more.  It seems to me that many of the religiously oriented legal writings on the relationship between religion and the state depend on two assumptions about religion that may be widely shared among members of many "traditional" faiths, but not by others: 1) that most or all of God's communications to man have already occurred, and therefore that religion's response to the conditions of the secular world is in some sense fixed by what has gone before; and that 2) purity of faith depends on believers making a strong distinction between religious and temporal authority and following only or primarily the former, even to the point of martyrdom.  One such set of arguments are put usefully in a paper by Mark Tushnet called In Praise of Martyrdom; but a different perspective is available in a short and remarkable paper by Frederick Mark Gedicks titled "The Integrity of Survival: A Mormon Response to Stanley Hauerwas," 42 DePaul L. Rev. 167 (1992).  I think Gedicks's wonderful paper complicates the picture painted by Tushnet substantially.

Of course this post has only raised questions, and that but generally, and hasn't even attempted to answer them.  I'm not sure that any definitive answers are available, or if they are, that they wouldn't have to proceed on a faith-by-faith basis.  And to be sure, much more (and more informed) things could and have been said about the LDS experience in American legal history (among them, this fine paper by blogger/lawprof Nathan Oman).  My point is not to settle these questions, but to encourage law & religion profs (and students!) to include the 1890 Revelation in their must-read material, and to treat Reynolds and its sequelae as raising a host of productive broader questions for the relationship between law and religion, and not just as a minor and historically quaint signpost on the road to the dreaded Employment Division v. Smith.