The Perils of Constitutional Theology
Nathan B. Oman
Each year the United States Supreme Court produces a new batch of cases construing the religion clauses of the first amendment. There is something stylized about the debates these cases inevitably provoke, as partisans on either side of the various fault lines of church-state thinking adapt the well-worn arguments of separationism, accommodation, religious freedom, and equality before the law to new situations. Almost all of these debates treat religion and the law as separate things, with the constitution deciding how far one will be allowed to dictate to the other.
What is often lost in these debates is the way in which religions use the constitution to define themselves. Law is not something that just happens to religion. Rather, religions use secular law to create theologies that both explain the faith to believers and justify the religion to often suspicious outsiders. The United States began its life as an overwhelmingly Protestant country, one that was often hostile to non-Protestants. One of the most potent ways in which religious outsiders have defended their place in American society is by staking a religious claim to the U.S. constitution. In a sense, outsider religions have become American by developing theologies of the constitution.
Consider the Court’s recent decision in Espinoza v. Montana, which declared so-called Blaine amendments unconstitutional. To understand the religious stakes in the case, one must consider the Catholic experience in America. Early in the 19th century the Vatican, largely in response to French anti-clericalism, expressed hostility toward both liberalism and democracy. At the time, there were relatively few Catholics in the United States, but these statements inflamed the already deep-seated anti-Catholicism of American Protestants, crystallizing for many a vision of Catholics as implacably hostile to American democracy.
As the century progressed, Catholic immigration to the United States increased, first from Ireland and French Canada and later from southern and central Europe. In addition, America absorbed large Catholic populations in California and the southwest when it annexed those territories from Mexico. Despite the moderation of Rome’s stance toward liberal democracy over the course of the 19th century, however, anti-Catholicism if anything increased with the growth of the Catholic population.
These fears galvanized Protestant America into emphasizing public schools as a vehicle to “Americanize” immigrants, a process that included a healthy dose of indoctrination in non-denominational Protestantism. Catholics created their own parochial school system in response, and in reaction states adopted so-called Blaine amendments, which prohibited any support for parochial schools. At the same time, mainly Protestant activists began pushing the idea that the constitution, which doesn’t contain the term, embodied the ideal of the separation of church and state. Historically, the emphasis on separationism (as opposed to disestablishment) was new, and its partisans were clear in directing their ire primarily at Catholics.
My point in recounting this history is not to poison the well against separationism, which can be defended in good faith without anti-Catholicism. Rather, the history is necessary to see the way in which Catholic belonging in American society is tied up in part with the history of debates over the Blaine amendments. The response to the hostility represented by the Blaine amendments is telling. Long before Catholic lawyers and legal scholars began crafting doctrinal legal attacks on the amendments, Catholic thinkers such as John Courtney Murray, SJ (1904-1967) crafted theologies that accommodated religious freedom and pluralism. Building on the more moderate stance taken by the Papacy in the late 19th century, he made peace with the U.S. constitution.
This theological embrace of the constitution did three things. First, it helped lay to rest some of the hostility and suspicion directed at American Catholics. Second, it allowed at least some Catholics to offer a constitutional critique of America’s de facto Protestant establishment. They were hardly the only or even the most important voices in this critique, but their embrace of a certain vision of the constitution contributed to the transformation of constitutional law. Finally, the theological embrace of the constitution transformed Catholicism itself, with the writings of Murray and other American theologians contributing to the revolution of Vatican II.
The theological embrace of the constitution is not without religious risks. Consider the case of the Latter-day Saints. While Mormonism began in upstate New York in the 1830s, the acceptance of the Church of Jesus Christ of Latter-day Saints by American society was a long time in coming. During the 1830s and 1840s, Latter-day Saints were beaten, raped, and murdered by mobs convinced that Mormonism, like Catholicism, represented an existential threat to American democracy. The Latter-day Saint embrace of polygamy in the 1840s and 1850s, physical and social isolation in the Great Basin, and the mass immigration of converts from abroad further inflamed hostility toward this “foreign” group. That hostility spawned a grueling series of legal and political battles that began in the late 1850s and didn’t end until the LDS Church finally abandoned plural marriage between 1890 and 1904.
Unsurprisingly, the fortunes of the U.S. constitution within Mormon theology waxed and waned over the course of the 19th century. Early Latter-day Saint scriptures produced in response to the first round of anti-Mormon violence in the early 1830s embraced the idea of religious freedom in the constitution as a product of divine inspiration. As anti-Mormon violence peaked in the 1840s, however, Latter-day Saints soured on the American experiment. They embraced the ideal of political independence for a Mormon commonwealth in the far west and tried to emigrate to what was then a remote Mexican territory. The American conquest and annexation of northern Mexico in 1848, however, foiled these plans.
During the 1840s and the 1850s, Latter-day Saints were more likely to express bitter regret over the constitution’s inability to protect religious minorities than to laud it as divinely inspired. As anti-Mormon lawyers replaced anti-Mormon mobs in the 1860s, 1870s, and 1880s, however, the Latter-day Saints rediscovered the usefulness of law and with it a reverence for the constitution. During the legal battles over polygamy, professionally trained Mormon lawyers fought a series of largely unsuccessful cases to the U.S. Supreme Court. Their efforts nevertheless forestalled the final Mormon capitulation for two generations, pushing constitutional law into the foreground of Latter-day Saint experience and consciousness.
In the 20th century the Latter-day Saints had to forge a new identity that could put the role of sullen and defeated “fanatics” firmly in the past. Among other strategies, they claimed their place as “regular” Americans by firmly embracing the idea of the constitution as divinely inspired. By inscribing Americanism deeply into their theological discourse, Latter-day Saints assured themselves that despite over a half-century of at times violent conflict with the United States, it was religiously acceptable to be a “regular” American. At the same time, their religious enthusiasm for the constitution helped to reassure a skeptical nation that Latter-day Saints could be trusted as American citizens.
This theological enthusiasm for the constitution has been a mixed blessing for Mormonism. Many 20th century Latter-day Saints tended to ignore the at best ambivalent embrace of the constitution in their 19th-century scriptures, instead elevating the constitution itself into a quasi-religious text. This was done despite the document’s manifest moral failures, particularly with regard to slavery. A hyper veneration for the constitution contributed to a strain of ultra-rightwing politics within mid-20th century Mormonism and may have delayed the formal excision of racism from Latter-day Saint practice and theology in 1978.
There have always been more moderate voices in Mormonism, such as U.S. Solicitor General Rex Lee, who tempered the rush to canonize the constitution. As an institution, the contemporary LDS Church has generally seen reactionary mid-20th century theologies as a liability to be discreetly abandoned. Nevertheless, the constitution as a sacred document continues to be a potent concept in American Latter-day Saint culture, and, like all scripture, the constitution can take on a religious life that wanders far from its text.
This can be seen in Utah’s reaction to the COVID pandemic. In some ways Utah was well served by Latter-day Saint culture, which places a high value on healthy lifestyles, young families, and functional institutions, all of which contributed to a society that ought to have been fairly resilient in the face of the pandemic. This can be seen in Utah’s high rates of early COVID testing and its relatively low death rate from infection.
However, over the summer the rate of infection in Utah has spiked dramatically. Large segments of Utah’s population have resisted calls for social distancing and the wearing of masks. Some ultra-conservatives in Utah have vociferously insisted that such restrictions threaten the freedoms enshrined in the sacred scripture of the constitution. (These voices have been less clear about articulating precisely how public health rules violate constitutional law.) The political potency of this crude, religiously infused libertarianism almost certainly accounts for the anemic efforts of state officials in Utah to enforce social distancing. While the LDS Church itself was fairly aggressive about shutting down its own religious services, at least one member of the Church hierarchy likely threw fuel on the flames by suggesting that public health restrictions could threaten religious liberty.
This dynamic created a bizarre religious impasse in July when the regional leadership of the LDS Church in Utah issued a letter calling on all church members in the state to wear masks in public. Despite the stereotype of disciplined Latter-day Saints falling into line behind church leaders, the letter was met with fierce criticism by some conservative church members. They insisted that their religious duty to the sacred principles of the constitution trumped the claims of religious counsel from church leaders. In one of the most hierarchical religions in America, the theological authority of the constitution, it would seem, can outweigh the theological authority of the ecclesiastical hierarchy. It’s an impasse that threatens both public health and the cohesion of the Latter-day Saint community, an unintended legacy of theologizing the constitution in order to claim belonging in American society.
The constitution is a legal document, but it is more than just a legal document. Throughout its history it has led a rich religious life. In many ways the story of the United States is the story of outsiders thrusting their way into society and claiming their place in the American mainstream. One of the ways religious outsiders have repeatedly done this is by claiming the constitution and working it into their theologies. Sometimes these internal interpretations of the constitution spill outward into the broader stream of constitutional law as in Espinoza. Always, the sacralization of the constitution helps to mediate membership in the American community. And sometimes constitutional theology has a darker side, turning into a destructive idol. ♦
Nathan B. Oman is the Rollins Professor of Law at William & Mary Law School. He is currently writing a book on the Latter-day Saint legal tradition.