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Friday, January 26, 2007

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.  

Posted by Paul Horwitz on January 26, 2007 at 02:36 PM in Religion | Permalink


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» Law, Revelation, and the Power of Interpretation from Concurring Opinions
I realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series... [Read More]

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After reading this post, I deeply regret not taking any of your classes at Southwestern.

Posted by: J. Freeman | Oct 15, 2007 11:57:03 PM

I wonder if Professor D'Amato could provide a legal definition of "absurd?"

Posted by: Seth R. | Feb 4, 2007 8:44:34 PM

I somehow mistyped the link code for my prior Co-Op post. Let me try again.

Co-Op Post

Posted by: Kaimi | Feb 1, 2007 1:43:54 PM


Thanks for a very interesting post. I agree that added background is very helpful.

As a Mormon, I find the Mormon cases interesting in part because they're the culmination of literally 40 years of increasingly intense federal prosecution. That history is set out in various sources including Gedicks, and in most detail in the book The Mormon Question, by legal historian Sarah Gordon (Penn Law).

A nutshell version is that traditional bigamy prosecutions just didn't work in Utah. This was for a variety of reasons, among them jury nullification, lack of evidence, lack of cooperating witnesses, and lack of funding for prosecution.

This led to sporadic bursts of congressional outrage. As a result, the federal government eventually passed a series of increasingly draconian statutes. Evidentiary standards were relaxed. Mormons were banned by federal law from voting, serving on juries, or holding any public office, and these restrictions were applied ex post facto. The federal government, by statute, also dissolved the church as an entity and seized all church property.

(And, as an aside for Professor D'Amato -- the same series of federal statutes also explicitly removed from Utah women the right to vote, which they had previously enjoyed. The federal attitude towards Mormon women was ambivalent at best. They are sometimes painted as helpless victims of Mormon patriarchy, but are also often described as co-conspirators in polygamy, or as sexually licentious Jezebels in need of government supervision.)

Under the same statutes, the federal government made unmarried cohabitation a felony crime in many circumstances. This was intended to allow prosecution of polygamous families where no official marriage could be proved. Indeed, it was the cohabitation prosecutions that ultimately ended the practice of plural marriage; after passage of the Edmunds Act, there were 31 bigamy convictions under the Act, and over a thousand cohabitation convictions. (These laws are still on the books, having been incorporated into the state criminal code. This means that, as noted in my earlier Co-Op post, a person can be jailed for bigamy under the Utah statute for having one spouse, or even no spouse at all.)

And during portions of this time, federal troops were sent to Utah to put down a perceived Mormon rebellion.

It's really quite remarkable the lengths that the government ultimately went to in this process. And with the historical background, the cases seem much more interesting to me -- not as stand-along decisions, but rather as pieces in the larger discussions about state power over unpopular minority groups.

Posted by: Kaimi | Feb 1, 2007 1:41:56 PM

Very interesting post. I have written up something in response over at Co-opt, but for whatever reason I can't get the TackBack to work. Here is a manual link:

"Law, Revelation, and the Power of Interpretation"

Posted by: Nate Oman | Jan 29, 2007 2:39:05 PM

I tend to think that Smith's at least a reasonable interpretation of the free exercise clause, and probably the best reading -- but even if it were a pure matter of policy, I'd still suggest such an approach makes more sense. On a level of policy, what troubles me is what happens when you have someone making claims that are clearly unsustainable -- the Florida driver's license cases a couple of years ago; or for that matter, the mormon cases, which aren't purely of historical interest, since there are other religions that want to flout bigamy laws, some of whom are assertive about their desires to live by their own rules. If you don't accept the principle that "the [Free Exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons," what do you do if confronted with a religion that basically treats women like property, whose adherents demand free exercise? In short, what do you do when the conduct at issue is more invidious than smoking peyote?

Posted by: Simon | Jan 29, 2007 1:09:03 PM

Fair question. Both, I think. Certainly the first, in other ways certainly the second, and I might add that my sense of my own personal constitutional methodology is that I am not precluded from having (1) influence (2), although I do not believe (1) should necessarily be determinative of (2).

Posted by: Paul Horwitz | Jan 29, 2007 11:19:15 AM

Although I share the view of many in the field that Smith was a bad decisionIn the sense that you think it's bad (or at least, less than optimal) as a policy question that generally-applicable laws will override religious commitments to the contrary, or in the sense that you think it misconstrues the First Amendment?

Posted by: Simon | Jan 29, 2007 11:07:06 AM

To Prof. D'Amato: I think we might well disagree on the proposition in your second paragraph, but that's fine; the purpose of the post was to suggest to Law & Religion teachers that the Revelation opens up a host of productive questions, not to supply my own answer. I think even if we agreed that the state ultimately must preserve core values, though, and even if we agreed on what they were, we might still disagree on how best to do so, and not least on what preconditions must exist for a liberal society to decide what those values are. For myself, one of the reasons (not the only one) I believe in religious freedom and, often, religious autonomy, even where it might lead to conduct I don't share and might not like, is that I believe the liberal state ought to preserve spaces for illiberal groups because they bring, or may bring, other sources of knowledge and inspiration to the table as we deliberate together in forming the very "core values" of which you write. As for your first paragraph, it seems to me that even if Woodruff was "only" saying that giving up polygamy was the lesser of two evils, that still raises interesting questions for those who think about the relationship between religion and the state, or between the secular and religious realms. For the temptation, one I believe folks often fall prey to in thinking about these cases, is to conclude that the Church made a quite secular cost-benefit analysis; conversely, one might make the mistake of seeing the decision as purely a religious decision, but with the assumption that the decision was isolated from events in the world. What I find fascinating about the Revelation is that it partakes of both, in interesting ways. And that, I think, should be provocative for scholars in the field.

Simon: I was being a little cute about Smith. Although I share the view of many in the field that Smith was a bad decision, and tend to be a fairly strong accommodationist despite the "rationality" of Smith -- and I do not concede that the legal system's primary desideratum is "rationality," in the sense of constructing a logically consistent but hermetic legal system, as much as lawyers seem to yearn for such a world -- I was not really urging folks to draw the same conclusion. Just as con law classes are often structured around received narratives, right or wrong -- the triumph of the New Deal Court, the radicalness of Lopez, the rise and fall of Lochnerism, and so on -- so I think Smith often takes a similar position in the received narrative of the Religion Clauses. That doesn't mean I share the received view entirely, and it doesn't mean that those who do aren't capable of giving a fair hearing to very contrary viewpoints, and discussing the many things that are logically compelling about Smith. But the call of narrative is strong nevertheless. My use of the word "dreaded" was really just a light-hearted tip of the hat to the possibility that law and religion profs might treat Reynolds as a brief stop along the way to constructing the historical narrative ending in Smith.

Rick and Edward: Thanks. I have already cited your UCLA piece to the class, Rick. It struck me, too, as relevant to this discussion.

Posted by: Paul Horwitz | Jan 29, 2007 10:21:32 AM

Why would Employment Division v. Smith - which strikes me as not only correct in terms of the First Amendment, but also eminently rational as a matter of policy - be "dreaded"?

Posted by: Simon | Jan 29, 2007 10:02:10 AM

Anthony D'Amato, in answer to your bizarre question in the last paragraph of your comment: No, that is not the real lesson.

Posted by: Chairm | Jan 29, 2007 12:10:22 AM

It seems to me that Woodruff is only saying that giving up polygamy is the lesser of two evils for the Mormons. What else do you think he's saying? Why isn't his additional language mere surplusage?

And isn't the real lesson here not the effect of the state upon religious practices, but the need for the state to preserve core values (such as the equality of women) against the corrosive and primitively misogynistic memes of absurd belief-systems?

Posted by: Anthony D'Amato | Jan 28, 2007 4:59:40 PM

Great post, Paul. I think the Mormon cases complicate, in interesting ways, Justice Brennan's remarks, in the Blue Hull case, about the state's non-interest in the "development of doctrine."

Posted by: Rick Garnett | Jan 27, 2007 10:25:22 AM

I was already planning on adding the Mormon cases to my First Amendment Religion readings later this semester. Thanks for the pointer to the Official Declaration and the other links. I will definitely consider these.

Edward Still, Birmingham AL

Posted by: Edward Still | Jan 26, 2007 10:05:25 PM

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