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Yet Joseph surely was the founder of their bondage, for it was he who assimilated the power of God to the power of government. He became the government of Egypt. He either forgot or never learned the lesson that when you become entangled with Pharaoh, you risk your very freedom, because Pharaohs change, and even though your Pharaoh may be a righteous man and seek to establish his kingdom and judge his people wisely and justly all his days, seeking earnestly to imitate the righteous order of olden days, he may still be “cursed as pertaining to the priesthood.”856 And his successor, the Pharaoh of your children, may be the village idiot or the next Pol Pot. There is no guarantee in these matters, and it is easier to get into such things than it is to get out. Heber C. Kimball, a Mormon apostle and counselor to Brigham Young, said:

“This Church has before it many close places through which it will have to pass before the work of God is crowned with victory. To meet the difficulties that are coming, it will be necessary for you to have a knowledge of the truth of this work for yourselves. The difficulties will be of such a character that the man or woman who does not possess this personal knowledge or witness will fall. If you have not got the testimony, live right and call upon the Lord and cease not till you obtain it. If you do not you will not stand…. Remember these sayings, for many of you will live to see them fulfilled. The time will come when no man nor woman will be able to endure on borrowed light. Each will have to be guided by the light within himself. If you do not have it, how can you stand?”857



The idea of “borrowed light” comes from Mormon scripture and refers to orders of magnitude of “glory” among the stars and planets.858 Hence, the earth’s sun “borrows its light” from Kolob, the star nearest the throne of God.859 When the church and kingdom go to law in order to potentiate their power, they are attempting to borrow light (and power) from the state.

In all such misapprehensions, a subtle and ironic exchange occurs, as captured in the words of Satan in Mormon scripture: Give me your honor, which is my power.860 The church and the state corrupt each other, as happened in the 1990s in Hawaii when the church took to politics to defeat same-sex marriage861 and the means justified the ends of lying because others were lying.862 “Lying for the Lord,” using wile and guile to defend one’s faith, is often seen as an expression of great faith in God, but in fact it is an expression of the fear that comes from faithlessness. Abraham, the “father of the faithful,” the scriptural icon of faith personified, was an intentional liar863—and this despite his use of his genitals—his testes—for the swearing of oaths that if he were to lie, he would suffer himself to be neutered.864 From the testes (the testicles) as the place of oath-making come testimony, testify, testator, and testament. This was his testament—his genitals were the instrument and symbol of knowing, the means by which men know and are known. Abraham was willing to murder his own son when God told him to do so865, and he was willing to lie when God told him to lie in order to protect himself (not his wife or his family) from governmental harm in Egypt.866 The modern-day faithful become the children of the liar.867 The faithful resolve “to be true to God, not to the truth.”868 As the Court in the Kitzmiller v. Dover Area School District case concluded: “It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose” of their actions.869 The penis is the religious test—and vice versa. Being “born again” takes on a sexual color. Like the narrow neck of an hourglass, sex has become the modern Shibboleth for ecumenical and ecclesiastical homophobia where church and state meet—particularly for Mormons and their history of polygamy.870 Where initially the wicked persecuted the church, the church now persecutes all who are not correctly “churched.”871 It has become part of the Christian mob. God, it is said, “cannot look upon sin with the least degree of allowance,”872 but politics can, and does. It must, for it represents and constituted the demos, the whole people who are not always agreed on a single definition (or any definition) of “sin.” It cannot be comprised alone of the “elect,” the chosen, the peculiar people and the royal priesthood873—and if it is, they are therefore not God’s elect, but the state’s. The compromise ineluctably forces choices, the law of man parses the law of God into lighter and weightier matters, and the weighter matters are neglected.874 Sic semper tyrannis. Outward, visible performances and obediences become primary, and spiritial and ecclesiastical abuse abounds.875 “In hell, due process will be meticulously observed.”876 The present world is a part of this system, and Satan is its prince.877 For Mormons, the church and kingdom of God are a theocracy, not a democracy.878 For that theocracy to ask a democracy to throw in its lot together, or vice versa, is to corrupt both.879 That does not change, and the leaven never really leavens the whole.880 Thus, the commandment is to “come out” of Babylon881 until Christ, whose right it is to reign, puts all enemies under his feet.882 This language is but another way of talking about the separation of church and state. In Mormon scripture, the remedy is for the high priest to depart the seats of governmental power and go to preach the gospel.883

In the midst of huge national animosity toward the Mormon church and a series of Congressional bills and US Supreme Court decisions ever more hostile to polygamy, Brigham Young said this:


“Have you nothing to say, brother Brigham, concerning the Supreme Court of the United States? A few words. I am happy to learn that there are yet men in our government who are too high-minded, too pure in their thoughts and feelings to bow down to a sectarian prejudice, and to hearken to the whinings and complaints of prejudiced priests, or those who are wrapped up in the nutshell of sectarianism; men of honor, nobility, judgment and discretion; men who look at things as they are and judge according to the nature thereof without any discrimination as to parties or people.”884
Unfortunately, Brother Brigham’s faith in the nobility of men was misplaced. In the end, under threat of law, the church abandoned the practice (not the doctrine) of polygamy.885 The ecumenism that has arisen among the various churches over certain hot-button political, legal, and social issues is a false ecumenism. It is a convenient bandwagonism intending to mask the privileged status and special rights claimed by religion in the name of the law. Hence, Daniel Statman notes the “odd fact that, in Western countries, claims about hurt feelings are made mainly by religious people, as if only religious feelings can be hurt or, in fact, are hurt.”886 The “Christianity” that in Joseph Smith’s “first vision” was characterized as “apostate” has not changed its central doctrines or practices since 1820. Indeed, Mormon Apostle Packer said in an official speech in 1985, “We do not join associations of clergy or councils of churches. We keep our distance from the ecumenical movements. The restored gospel is the means by which Christians must ultimately be united.”887 One must ask then, What of the new “coalition of churches” in 2008, as announced by the church’s letter of June 29, 2008, to defeat same-sex marriage in California? Surely, such coalitions are “combinations” as that word is used in Mormon scripture, but are they “secret” combinations of the kind deplored in those scriptures? Earlier we discussed at length the scriptural prohibitions against the “secret combinations of Babylon” where the essential problem is the secrecy of the association in question. Secrecy, of course, is the opposite of transparency.888 One of the hallmarks of a democracy is its attempt to make the workings of government transparent. Corporations, for example, are policed by many agencies, including the tax authorities, to ensure that stockholders and customers can know the company’s operations. What, then, was the objection when the IRS warned the California church that it was at risk of losing its tax-exempt status because of an antiwar sermon delivered two days before the 2004 presidential election. Churches operating strictly as ecclesiastical organizations are not taxed. This is an advantage they enjoy because of the “wall of separation.” Similarly, their inner operations are not open to scrutiny by the public and public agencies. In other words, they are not transparent but secret, and coalitions of them for political ends are classic “secret combinations” within the meanings of Mormon scripture. Babylon cannot be resisted with the tools of Babylon.889 Stated another way, if the US Constitution “will hang upon a single thread,”890 it cannot be rescued by those who are compliant with the forces which are causing it to hang by a thread.891 When there is a religious test for political correctness, pretty soon it becomes a religiosity test, and “being a Christian” becomes not only the only test one needs, it becomes the only test one can have.

Chapter 12: Schismogenesis & Bombast

“They [the true doctrines of Jesus] have been still more disfigured by the corruptions of schismatizing followers, who have found an interest in sophisticating and perverting the simple doctrines he taught….”892



—Thomas Jefferson
Up to this point, we have considered the idea of “gathering” as the image of collecting the righteous “out of the world” and bringing them together in Zion. “Gathering the people” has been a Mormon theme from its inception. But there is a special text in the Bible that we must now come to for it focuses the idea of gathering versus its opposite very clearly. Jesus taught: He that is not with me is against me; and he that gathereth not with me scattereth abroad.”893 The Bible also makes it incumbent upon all who call themselves prophets and apostles to bring “all” to a “unity of the faith.”894 This is to be accomplished without contention and “without compulsory means.”895 Indeed, the envisioned end-point is that every knee shall bow and every tongue confess that Jesus is the Christ.896 There are no exceptions allowed within these scriptural absolutes. And yet Mormonism, like Christianity in general, has signally failed in this central “work of the ministry.”897 And since it is a work of the ministry, it would seem arguable that no other success could compensate for failure in the pulpit. “Our constitution,” said John Adams, “was made only for a moral and religious people. It is wholly inadequate to the government of any other.”898 It is emphatically the province of the pulpit, not the government, to create the moral and religious people. Adams’s statement presupposes a moral and religious people, one for which the Constitution was made—not which the Constitution makes. It is easy to mistake these two ideas by inverting them. Jesus taught the same corrective: “The Sabbath was made for man, not man for the Sabbath.”899 The common reversal on this point is central of the problem of church and state and can be attributed in large part to the lack of sophistication in civics on the part of many citizens. Alexander Meiklejohn wrote:
“The primary social fact which blocks and hinders the success of our experiment in self-government is that our citizens are not educated for self-government. We are terrified by ideas, rather than challenged and stimulated by them. Our dominant mood is not the courage of people who dare to think. It is the timidity of those who fear and hate whenever conventions are questioned.”900
Yet the world has witnessed the ever-increasing work of the ministry not as causing the gathering to Jesus but as dividing and scattering—not toward a “unity of the faith” and toward a disunity that grows in rancor, and to a decrease in the civic sophistication of the citizenry. Everywhere, those who profess religion raise their voices and harden their language (a) among their own ranks, and (b) they further divide from the body of Christ those nonbelievers and other-believers who see the “wickedness of the church” and how this causes it to “fail in its progress.”901 The most troubling part of this syndrome is that the dividing and scattering are now seen for what they really are—intentional. Genesis has become schismogenesis.

The anthropologist Gregory Bateson cointed the term “schismogenesis” for these two phenomena—schismogensis meaning the genesis or creation of schism. He called them “symmetrical differentiation” and “complimentary differentiation,” and he noted that in either case, unless the schismogenesis is restrained, it leads to progressive rivalries and hostilities, with a “progressive unilateral distorition of the personalities of the members of both groups, which results in mutual hostility between them and must end in the breakdown of the [whole] system.”902 Many scholars have applied Bateson’s idea to numerous areas of life, including religion. The Book of Mormon is in its broadest sense the story of two peoples or groups (the Nephites and the Jaredites) the arc of whose story is a perfect pattern of schismogensis. Both stories mirror each other almost exactly in their dramatic structure: the early divisions of family (i.e., warring brothers) that lead to warring peoples, not unlike the story of Isaac and Ishmael in the Bible. As the two sides pull farther and farther and farther apart, reconciliation becomes impossible, and in the end they disintegrate into total destruction. In the Nephite example, the opposing groups are named Nephites (after the brother Nephi) and Lamanites (after his brother Laman)—the Lamanites being the “wicked” side and the Nephites being the “righteous” side. But then an odd thing happens—the Lamanites repent while the Nephites grow in wickedness until finally in the process of time the Lamanites become more righteous than the Nephites.903 While it might seem that this switch-over would end the hostilities and heal the schismogenesis, it does not for into the gap that has grown between these two groups over the generations there has infiltrated another and far more insidious entity called the Gadianton Robbers. Both groups stirred up “hatred for their brethren,”904 but the Gadiantons were the keepers and purveyors of “secret combinations” and the devices of the devil which were the ultimate causes of the destruction of the people. Compared to the Gadiantons, the Lamanites were never more than outlaws. The Gadiantons were the conspirators and the terrorists.

Both narrations in the Book of Mormon end in a downward spiral that brings total destruction to all sides—no one survives. Again and again, the people degenerate into factional “tribes and leaders of tribes.”905 In the end, the scorched-earth society drove the people to the point where they would “curse God, and wish to die. Nevertheless they would struggle with the sword for their lives.”906 Whatever may have been the original mainsprings of division in the antiquity of the story, the ultimate cause of the ultimate demise was “divisions, evils, false churches, and persecutions” that arose among all the peoples.907

Schismogenesis marks an escalation of mutual hostilities (ending in mutually assured destruction”) that is a return to the old ethic of “a tooth for a tooth”908 that Christianity professes to have abandoned.909 It is the rule of the marketplace and the public square, particularly in the realm of politics—the agora. Speaking of the first generation political culture in Washington, D.C., Margaret Bayard Smith observed that the Senate chamber was an arena “like the amphitheatres of Rome,” filled with images of war. “It is a kind of moral gladiatorship in which characters are torn to pieces, and arrows, yes, poisoned arrows, which tho’ not seen are deeply felt, are hurled by the combatants against each other.”910 This reality of the public square is known, expected, and accepted. It is its very nature and always has been. It reflects the character of the nation and its people, and in democracies it is generally considered to be not only a necessity but also a self-evident good. Nevertheless, its character is fundamentally that of rancor. A Biblical image apropos of this amphitheater is found in Matthew 12:43-45, a passage quoted by Mormon authorities as being instructive for homosexuals:


“When the unclean spirit is gone out of a man, he walketh through dry places, seeking rest, and findeth none. Then he [the unclean spirit] saith, I will return into my house from whence I came out, and when he is come, he findeth it empty, swept, and garnished. Then goeth he, and taketh with himself seven other spirits more wicked than himself, and they enter in and dwell there: and the last state of that man is worse than the first. Even so shall it be also unto this wicked generation.”911
The combatants in the agora tear at each other, inflame each other, and escalate the battle. Each tries to cast the other out, but the opposition returns with reinforcements, and the last state of the “moral gladiatorship” is worse than the first. In the process, the rhetoric also escalates. In what Paul Edwards calls “bombastic redescription,” the combatants redescribe their old familiar arguments and phrases in ever-more complex and seemingly profound terms.912 The tactic of bombast attempts to conceal the fact that nothing new is really being added. There is no new light, only more heat. This sophistry re-dresses old prejudices and divisions in new garb, and attempts to give them respectability by giving them profundity, but as Mormon leaders often say, “The new morality is but the old immorality.”913 Bombast is not necessarily shouting and tumult. Indeed, the redescription it advances is often couched in ever more polite and officious language—the artificial formality of a family gathering among members who hate each other. As battles escalate, so also does civility.914 In any case, bombast is a strident desperation driven by an underlying fear that one’s message and position are not getting through, that they are not being accepted in the marketplace of ideas—hence the need for more urgent measures of “conversion.” The unwilling infidels (Muslim, Jew, Shylock, atheist, sinner, homosexual, feminist, intellectual) must be converted by the force of the armed crusade because they will not voluntarily be persuaded by preaching alone. Their “evil” must be resisted at all cost, and so in the name of God the churchmen “Cry ‘Havoc!’, and let slip the dogs of war.”915 The process is the very essence of schismogenesis.916 Potentiating the message of the pulpit by assimilating it to the power of the state is the ultimate redescriptive bombast. It is, in other words, the public square.

So the churches “join the fray,” as Mormon apostle Dallin Oaks urges,917 and potentiate the schismogenesis. “Religion is attacked”918 and so it must counterattack, tooth for tooth—or at least defend itself in kind. The church’s assimilation of itself to the schismogenesis of the public square reveals the true character of the church and the religion is professes—the church political and the church militant. But this is not the pattern set by Jesus, to return blow for blow. He taught that “ye shall not resist evil” but rather “turn the other cheek”919 and be “peacemakers.”920 “Spiritual warfare” was the invention of Paul, not Jesus.921 As we saw earlier, in his essay, “Beyond Politics,” Hugh Nibley explodes this myth.922 “Politics, as practiced on earth,” he notes, “belongs to the ways of men; it is the essential activity of the city—the city of man, not the city of God.”923 There always comes a time—the “inevitable showdown”924—when men must choose between the two governments. In the image of the Book of Mormon, the Mormons, along with their “coalition of churches,” are tilting at the Lamanites, while all the while the Gadiantons are increasing in the world.

All this is the very definition and essence of the animus that official Mormondom has always directed at LGBT people, and at the families and marriages. The 2015 amicus brief struggles with finding a suitable definition of animus that would exclude all acts of “popular sovereignty,” even if such ballot measures “target a single group for disfavored treatment” (page 23). “If that is animus,” the 2015 brief argues, “the term has no useful meaning.” In this view, animus must be pure and unalloyed:
“Only proof of hostility toward the affected group, unmixed with any legitimate purpose for the challenged classification, justifies striking down a law for animus.”
The Mormons’ own definition of “animus” is instructive here because it does not square with this purist insistence. Probably the clearest official Mormon definition of animus that is relevant to the modern context of law, religious liberty, and the Constitution was given by church president John Taylor in 1884 in response to federal and state anti-polygamy laws:
“Thus a law [that day’s equivalent of DOMA, the Defense of Marriage Act] was first passed by Congress, which has been perverted by the administration, by all its officers who have officiated in this Territory, and made to subserve the interests of a party who have placed in their political platform an Anti-Mormon plank; and have clearly proven that there is a combination in all the officers of State, officiating in this Territory, to back up this political intrigue in the interest of party, and at the sacrifice of law, equity, jurisprudence and all the safeguards that are provided by the Constitution for the protection of human rights. These…are some points that are of considerable importance. Similar things have been exhibited in former times—an animus, a united operation against justice, equity and law, and, in our case, against the Constitution of the United States, and the rights and privileges and immunities of the Latter-day Saints.”925
Today, the Mormons have turned this anti-Mormon animus around and redirected it, in the same fashion and with same intensity, toward same-sex marriage and LGBT people. Their animus is not unalloyed, but is a mixture of legitimate and illegitimate purposes expressing proof of hostility toward LGBT people—a “united operation” against them and their marriages. This Mormon animus is clearly on display in the 2010 documentary, 8: The Mormon Proposition,926 which is easily available in many formats.

Chapter 13: The Mormon Church: Sect Turned Political Faction

The defeat which the Mormon church suffered on the issue of polygamy, and the ensuring redefinition of itself as a more acceptable “religion” within the American social fabric, were the beginning of its assimilation to the state and its politics:


At the very time that the United States was extending its sovereignty and exercising diplomatic influence in the internal politics of foreign nations, the L.D.S. church placed an apostle in the Senate who could and did leverage his office to enable his church also to internationalize.”927
The transformation of the religious sect into political faction was complete, and that transformation established a model that is alive and well today. Like the demand for the monogamous marriage of a man and a woman, the demand for a merger of the church and the state became a powerful motif at the same time. The two go hand in hand.

In his famous Federalist No. 10, James Madison warned that a “religious sect may degenerate into a political faction.” However, he felt that there would be sufficient protection from this pernicious influence if a wide variety of sects were widely dispersed over the entire face of the nation so as to protect the “national councils from any danger from that source.”928 Like all the Founders, Madison feared and detested factions for their pernicious tendency to undermine and ultimately destroy the republic. Suppressing the spirit of faction and increasing domestic tranquility was a major concern throughout the Federalist Papers. The problem with factions, as opposed to simple minorities and interest groups (of which there are many), is that each one tends to declare it own agenda as absolute and to claim for itself special rights to that end. A faction is usually unwilling to compromise. When religious sects degenerate into political factions, the conflict arises because religions—especially faith-based, “revealed” religions—hold their tenets to be absolute. Their argument becomes a zero-sum proposition such as this one on page 31 of the Mormon 2015 amicus brief noted above (emphasis added):


Recognizing sexual orientation as a suspect class might enhance the equal treatment of gays and lesbians, but only by subtracting from the First Amendment liberties of religious institutions and believers.
Yet in a democracy, it is compromise, not absolutism, that is the necessary element. As Justice Oliver Wendell Holmes, Jr., pointed out:
“All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.”929
When churches argue for their rights in terms of “religious liberty”—a phrase that does not appear in the Constitution—they are arguing for religious autonomy, in the words, complete, total, uninterrupted, and unopposed “freedom from government interference,” including freedom to discriminate at will. But if Holmes is correct, all rights—even these—are limited and modified by their neighborhood with other, sometimes competing, rights. Yet the 2015 Mormon amicus brief rejects such a balanced approach in which both their interests and the interests of LGBT people can be accommodated (page 34):
“They insist that ‘[w]e must protect religious liberty and the right to marry’…. Their sensitivity to religious liberty is certainly welcome. But there is no way for the Court to adequately mitigate the harms that a right to same-sex marriage will admittedly inflict.”
This absolutist insistence that the church’s position excludes everything else is, in Holmes’s words, a declaration that religious liberty is absolute to the logical extreme. In scriptural terms, it is selfish in the extreme. If there is any lesson in Jesus’s parable of the loaves and fishes, it is that by sharing something valuable, you always increase it. By dividing, you multiple.930

For all his prescience in the Federalist, Madison viewed factions as discrete entities. He did not entirely foresee the ability in modern times—with modern communications and transportation—for even widely dispersed sect-factions to coalesce around agreed-upon politically expedient issues for the sake of power, money, and competition. In effect, he did not foresee the modern resurgence of the anti-federalist mindset. The Anti-Federalists of Madison’s time were upset with the new Constitution’s totally secular language and particularly its ban on “religious tests.” They argued that religion was a necessary and crucial support of government and a guardian of public and private morals. For them, religion was the foundation of all civil institutions, and being the foundation, was entitled to absolute, or at least special, support and protection. They were parochial, provincial, homogenous, and localist—and their ideas and influence are present today.931 The Mormon church and its coalition of “faith communities” made precisely these same arguments in their amicus brief in the earlier California marriage cases. Referring to same-sex marriages as “genderless” and thus rendering gay people neutered (castrated and spayed), the church essentialized men and women along purely gender lines932, asserted that this was the “consensus” of “virtually all faith communities,” and then concluded with this argument:


“Faith communities are an essential pillar in the social infrastructure that sustains the uniquely elevated status of marriage…. Even for many people who are not religious, the religious imprimatur on marriage is highly valued culturally. In effect, the State and religious institutions informally cooperate in maintaining and fostering a social institution vital to vouchsafing both secular and religious interests. However, broad religious support for the civil institution of marriage exists only because the current legal definition of marriage corresponds to the definition of most faith communities. The creation of a genderless definition would fracture the centuries-old consensus about the meaning of marriage, spawning deep tensions between civil and religious understanding of that institution.”933
Perhaps the only inappropriate word in the foregoing statement is “informally,” for the “cooperation,” i.e., the faction, has become highly formal. The coalition further argued that redefining marriage to include any two people would reflect a major turn away from the primary function of marriage, which is to control sexual intercourse and create and provide for children, to a selfish “privatized” institution existing primarily for the benefit of the adults involved.934 On August 13, 2008, the Mormon church issued yet another official statement, “The Divine Institution of Marriage,” which reiterated and expanded these arguments.935 The core argument in that document, however, emphasized more strongly the “substantial conflicts” between same-sex marriage and religious freedom, which will place “church and state on a collision course” and diminish religious freedom (“religious liberty”). Citing a long list of such possible outcomes, the article states: “The prospect of same-sex marriage has already spawned legal collisions with the rights of free speech and of action based on religious beliefs.” The point of view seems to be that “religious beliefs” are, or ought to be, the subject of special deference to special rights, for no other reason than that it is religion,936 to cite Richard Dawkins again, and “absolute to their logical extreme,” in Holmes’s words—in other words, unlimited and unbalanced by other contending rights.937

“For Mormons, such arguments are specious at best, hypocritical at worst. Their 19th-Century arguments in favor of polygamy were based on the needs of adults and adult society. Mormon apostle George Q. Cannon argued in 1879 that the primary purpose of polygamy was to take up the slack of surplus unmarried and unmarriageable women due to the reality that “Men go to war, they go to sea, they engage in commercial pursuits, they leave their homes, they engage in hazardous occupations.”938 It is also specious for them to argue that the “redefinition” of a word which describes an “institution” is somehow pernicious. Both Jesus Christ and Joseph Smith were redefiners par excellence. All readers of the Bible know the frequent formula in Jesus’s teachings that begins with the words, “Ye have heard it said by them of old time,” and ends with “but I say unto you.” He redefined love, anger, and adultery (among many other words) in this way.939 Similarly, Joseph Smith took many common English and ecclesiastical words (church, ward, stake, quorum, endowment, intelligence, scripture, priesthood, born again, grace, glory) and reified them with meanings peculiar to his new church.940 To both Jesus and Joseph, it did not matter that there was a “centuries-old consensus” on the meanings of such words. They pressed them into service with new meanings that fit the new realities of their respective visions. In Adrienne Rich’s words, they chose “to sieve up old, sunken words, heave them, dripping with silt, turn them over, and bring them into the air of the present.”941 Both Jesus and Joseph singled out marriage as an object of special attention, redefinition, and change in both meaning and practice. Jesus was single942; Joseph was a polygamist. Jesus noted that “marrying and giving in marriage” were part of the wickedness that led up to the great flood of Noah.943 Joseph approved monogamous marriage until it became expedient for him to introduce polygamy.944 The fact is that marriage has always been, and still is, one of the most malleable concepts in human society—and one of the most co-opted by governments and religions. What is far more constant and intractable in patriarchal society is the insistence on “where It goes.” That is the real subtext of most of the marriage discussions. What is privileged is not so much any particular form of marriage so much as a particular form of genitalism.



Chapter 14: The Conflict in Mormon Doctrine

Up to this point, we have talked rather loosely of diversity and conformity in several contexts both political and social. It is now time to bring them together in a closer look at how they are inflected in Mormon doctrine and practice. .There is a tension in Mormon doctrine between diversity and variety on the one hand, and conformity and uniformity on the other. This conflict echoes the larger conflict of the church itself versus the individual. Joseph Smith said: “I teach them correct principles, and they govern themselves.”945 But the church he founded produces ever-increasing lists of rules by which acceptable conduct is measured. This evolution from the church’s founding to the present day explains a lot in terms of modern Mormonism’s growing desire to assimilate itself to law and politics. It also reflects the American nation’s struggle to understand its own growing diversity and pluralism as against a remembered or reconstructed past of uniformity and “shared values.”

The Mormon temple “Endowment” ceremony, which includes an account of creation similar to Genesis, celebrates diversity. When God (or the Gods) command their agents to create the earth and its living things, the purpose stated for the creation is to “beautify and give variety to the face of the earth.”946 Beauty and variety are seen as intrinsic, self-evident goods, and indeed they potentiate one another. Early Mormon scripture, again from the hand of Joseph Smith, held that “it is not meet that I should command in all things, for he that is compelled in all things, the same is a slothful and not a wise servant.”947 “Verily, I say, men should be anxiously engaged in a good cause, and do many things of their own free will, and bring to pass much righteousness. For the power is in them, wherein they are agents unto themselves.”948 This seems to coalesce with the “govern themselves” paradigm.

However, elsewhere the same volume condemns that which “seeketh to become a law unto itself, and willeth to abide in sin, and altogether abideth in sin.”949 The three elements of that formula, separated as they are by commas, might reasonably be read as cumulative—in other words, as saying that to “become a law unto itself” is only wrong if and when there is a concomitant “abiding in sin.” But it is not read that way. It is read as if the three elements are synonymous: to become a law unto itself is tantamount to abiding in sin. Hence, Mormon apostle Amasa Lyman said, “You are not independent, you never was [sic], and you never will be. That being does not exist within the range of man's history. The very principles upon which we exist make us the objects of dependence.950 Similarly, Mormon scripture holds that everyone must “deny himself” in order to follow Jesus.951

It is therefore not difficult to see why this ever-growing religious conservatism of the individual and the individual’s will and identity conflicts directly with a growingly diverse and libertarian America—and why there is a consequent felt need to invade and influence the very law that facilitates that diversity. Chai Feldblum elucidates the legal issues in a discussion of the liberty interests claimed by gay and lesbian people, among others, in modern America.952 Feldblum assembles the case law and treatises that have noted an increasing diversity of personal and moral liberty in a pluralistic society. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court stated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”953 But this “right,” if it exists, must strike fear and loathing into the heart of any true patriarch who claims the right, like Adam in Genesis, to name everything and everyone, and to insist that all of them be called only by the name he has given it, her, and them. As noted earlier, this has been the God-given right claimed by all patriarchs since God brought all the creatures, including the woman, to Adam to see what he (Adam) would name them.954 They were not allowed to name themselves. Thus, any right or “liberty” that claims the contrary authority “to define one’s own concept of existence,” to affirm oneself, strikes at the very root of this patriarchal privilege and the requirement to “deny yourself.”

The conflict in Mormon doctrine might perhaps best be expressed in the Mormon scripture that says: “[H]e that keepeth the laws of God hath no need to break the laws of the land.”955 This can be read two ways. It can mean that the church ought to try every means to minimize church-state conflicts by remaining neutral and distant from the state. On the other hand, it can mean that the church ought to do all it can to control the state so that the state does what the church wants. The first paradigm is one of distance, the second one of intimacy. Intimacy might seem at first to be the path toward uniformity and identity of ideology and purpose, but it is the foundation for conflict. The law, particularly the common law, is an evolving process. It changes as society evolves. But most religions, including Mormonism, see their principles as eternal and immutable—hence their conservatism in the face of societal change.



Conclusion

If the church and the kingdom have the power of faith which they claim, they are, or ought to be, above earthly power—above trusting in the “arm of flesh.”956 They ought to say to earthly power what Gawain says to Dagonet: “What, good Dagonet, dost thou lie at my door? Foolish boy, what need have I of thee? From what wouldst thou defend me?”957All victory and glory is [sic] brought to pass unto you through your diligence, faithfulness, and prayers of faith.”958 If you really have “faith in your prayers,”959 if in exercising them you “cannot go amiss,”960 why do you need or want school prayer? If you believe in the inherent power of the word of God961, why would you want or need to post it in a courtroom? Or wear it on your sleeve to be “seen of men”? If the power to “bring to pass much righteousness” is in human beings962, why do they need the power of the state? If the churches are open and the freedoms of religion, speech, and assembly are secure under the Constitution, why try to tag on to the government and law as a backup church? The answer, of course, is that “Persuasion is clumsy and its results uncertain.”963 When religion goes to law, the rules of religion no longer apply; the rules of law apply. It requires of all a “religious test.” Religiosity becomes the touchstone. It operates by “compulsory means.” When this happens, the cause of religion and its two-edged sword of faith becomes a jidad, and the church has the power of government behind it to issue and execute the fatwah. The faith that causes people to see eye to eye is denied, and it is required of Shylock by the law that “He presently become a Christian,”964 and must do so lest the Duke make good his threat to “recant / The pardon that I late pronouncéd here.”965 None of this expresses the power of faith (not mere belief) as understood by the Latter-day Saints but the edifice of the law. So long as the church clings to it, the church cannot stand “independent above all other creatures beneath the celestial world,”966 cannot have faith in its prayers967, and cannot claim to possess the power of God unto salvation,968 All that is relegated to the state. This is hell, where the devil is prince969, where Babylon commingles with apostate Christendom (which tries to rule Babylon), and where there is nothing but law with its mandatory heterosexuality, where there is faith no more, neither free agency, and due process is meticulously observed. It is, in short, as the old Mormon joke about “free agency and how to enforce it.”

There is another, perhaps more serious problem. Walls of separation—any walls—create two sides, and when one of those sides escalates, the other must also escalate. The Berlin Wall of the Cold War is a suitable image. It is arguable that when the coalitions of churches in the United States began to escalate the anti-homosexual contest in the 1960s and 1970s, they actually exacerbated the situation which they deplored in ways that would not have occurred without their stimulus. Mormon apostle Boyd Packer understood this when he spoke in 1976 “To the One” and promised he would use the word “homosexuality” only once lest he inflame the thoughts of all present.970 He actually addressed thousands in a congregational assembly. He also noted, without comment or elaboration, that there might be a message for “the one” in the text of Matthew 12:43-45, which reads (emphasis added):
“When the unclean spirit is gone out of a man, he walketh through dry places, seeking rest, and findeth none. Then he saith, I will return into my house from whence I came out; and when he is come, he findeth [it] empty, swept, and garnished. Then goeth he, and taketh with himself seven other spirits more wicked than himself, and they enter in and dwell there: and the last [state] of that man is worse than the first. Even so shall it be also unto this wicked generation.”
In terms of the ways in which walls operate and both sides escalate, it would appear that the lesson in the Matthew text is rather for Packer and the church. In their efforts to exorcise the “unclean spirits” they perceive in the world, and to do so by going to law and politics, they have merely emboldened those they oppose on the other side of the wall. Indeed, as each of the two sides breaches the wall in ever more aggressive ways, they succeed in pulling the other wide over the wall and onto their side in ever-escalating cycles. In the process, many people both young and old feel pushed into early premarital sexual relations in order to “prove” or “guarantee” to themselves and others that they are “not gay.” In practical terms, as the “coalition of churches” escalates its anti-same-sex-marriage efforts in California, that will spark and equal and opposite reaction by the pro-same-sex-marriage forces—and thus further embroil everyone in more disputatious politics. The process demonstrates how easy it has become to breach the wall of separation, crossing back and forth effortlessly, assimilating one side to the other seamlessly, without apparent thought or problematization. Those who come into the public square submit themselves to the rules and consequences, the rough-and-tumble, of the public square. For the church, this has meant the opening of many old wounds and controversies that it would rather leave alone. The church must expect this. Any sense of surprise or discomfiture when this happens is misplaced:

“False prophets and false teachers are also those who attempt to change the God-given and scripturally based doctrines that protect the sanctity of marriage, the divine nature of the family, and the essential doctrine of personal morality. They advocate a redefinition of morality to justify fornication, adultery, and homosexual relationships. Some openly champion the legalization of so-called same-gender marriages. To justify their rejection of God’s immutable laws that protect the family, these false prophets and false teachers even attack the inspired proclamation on the family [the Proclamation herein] issued to the world in 1995 by the First Presidency and the Twelve Apostles.”971

The public square responds: Of course all these things happen; it is the very nature of the marketplace, where freedom of speech and thought prevail. That is as it should be, for “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”972 Honest debate and disagreement are not an “attack,” and those who participate on different sides of such questions in the exercise of their free speech are not “false prophets” and “false teachers”—merely interlocutors. If Joseph Smith was right, that “truth will cut its own way,"973 and if Justice Holmes was right that "the best test of truth is the power of the thought to get itself accepted in the competition of the market,"974 then that is the best justification of the need for the wall of separation. It is also a pretty good definition of faith.

And as for the orthodoxy you announce today, the exact same charges—attacking the “sanctity of marriage, the divine nature of the family, and the essential doctrine of personal morality”—were leveled by others against the Mormons in the 19th Century for their practice of polygamy. Their enemies viewed polygamy as the quintessential example of “fornication and adultery.” As Nibley correctly noted, both then and now the “whole blame is on sex.”975 Yet, perhaps oddly, the sexual metaphor of the “little factory,” adduced by apostle Packer in “To Young Men Only,” is apt as well in the political context—if the “little factory” is thought of as the fountain of contention that brews with constantly going to law and politics as a substitute for faith. We can thus liken it to that context:


“There is, however, something you should not do…to tamper with that factory…. This you shouldn't do, for if you do that, the little factory will speed up. You will then be tempted again and again to release it. You can quickly be subjected to a habit, one that is not worthy, one that will leave you feeling depressed and feeling guilty. Resist that temptation.
***

“There are ways to conquer such a habit. First of all, you must leave that factory alone long enough for it to slow down. Resisting is not easy. It will take weeks, even months. But you can get the little factory slowed back to where it should be.”976



Similarly, it is difficult to resist the temptations of governmental power and politics, the potestas politicas—political power,977 much less to give them up once the habit of using them has been established and speeded up. The “trying of your faith worketh patience,”978 which can take weeks, even months or years; but the instant gratification of power is an emotional rush. Until the church gives this up and leaves politics alone, it will remain subjected to a habit, one that is not worthy, one that will (or ought to) leave it feeling depressed and guilty. The church in the “latter/last days” considers itself to be the culmination of prophecies spoken “by the mouths of all the holy prophets since the world began.”979 It claims to follow the God of love980 and the Prince of Peace.981 Yet the collective church today stands for little of love or peace. Its newly minted doctrines of hatred and separation have fractured society in ways that only holy wars and their destructive power struggles can. But the church can rest assured in one thing, and perhaps in this alone: that it fulfills to the letter the prophecies of both the Old and New Testaments, the latter spoken by Jesus himself: “Think not that I am come to send peace on earth: I came not to send peace, but a sword. For I am come to set a man at variance against his father, and the daughter against her mother, and the daughter in law against her mother in law. And a man’s foes shall be they of his own household.”982 While there should be no religious test in the public square, there is a religious test provided for all practicing Christians: “By this shall all men know that ye are my disciples, if ye have love one to another.”983 If eternal vigilance is the price of liberty and democracy, then vigilance over religious liberty in our democracy is surely part of that price. Packer made the following decrial:
“There are Church watchers, in and out of the Church, who show great interest in what we do. They watch what they define as the power structure, the resources of the Church, the changes in organization, the political and social issues; and they draw conclusions from their watching. They write their observations and print them in publications and represent them to be accurate and objective reports of what is going on in the Church.”984
This might seem to be an obvious truism on two accounts: this is what scholars do, and this is what the church invites to be done—particularly with regard to the “political and social issues” which the church insists, along with the rest of Christendom, that it has a right to participate in within the public square. Indeed, it is expected and necessary for the operation of a democracy. What occurs in the public square is the business of “watchers” of every kind. The political and social issues are very much the business of the watchers and publishing them very much the business of the free press. Whether they are “accurate and objective reports” must, of course, be judged by the same rigorous standards that any other reports are judged—but it cannot be assumed that because “they” do any of this, such matters are not accurate or objective. In the public square, not everyone “faces the same way.”985 In scriptural terms, the public square is very much “of the world” and “in the world.” Politics is often referred to as a “contact sport” and a “blood sport.” Those who participate in it cannot “keep themselves unspotted from the world”986 and the “blood and sins” of the world987 no matter how hard they try. As Mormon apostle Henry B. Eyring states:
“We live in a world where finding fault in others seems to be the favorite blood sport. It has long been the basis of political campaign strategy. It is the theme of much television programming across the world. It sells newspapers. Whenever we meet anyone, our first, almost unconscious reaction may be to look for imperfections.”988
Thus, the correct stance, in the words of the Book of Mormon, would seem to be to “seek not for power, but to pull it down.”989 When the Mormon church emerged from its infancy and isolation (“Just remember this isn’t 1830, and there aren’t just six of us”990), and entered the marketplace, it assumed these understandings. When the church actively seeks media attention,991 these understandings are included. From its earliest days, when Joseph Smith became a candidate for the US presidency, it was recognized that the church was a political force to be reckoned with—and feared.992 But it was in the 1890s and early 1900s that the church came to be seen as a “potential broker in national politics.”993 When the church becomes political, the same vigilance that attends any other political function or institution must necessarily apply to it. This should not be a cause of fear or defensiveness. Openness and transparency should be the standards everywhere—in finances, in meetings, doctrine, history—in everything. In any case, where the church chooses to be both “in the world” and “of the world” by participating in politics, it makes itself subject to the rules and consequences of the world. Earlier, we noted the passage in Mormon scripture that declares:
“And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.”994
The church now claims a worldwide membership in many nations existing under many polities. This evangelization, it is argued, has been possible because the church arose and is based in the United States, with the advantage of the religious liberty which the United States guarantees—and funds. The church further argues that that example is a light and a standard to the peoples of these other nations. It is not unreasonable, and it would be consistent, to extrapolate from the passage quoted that in the democratization of the various other nations which have occurred since Joseph Smith’s day, the leaders who inspired and fomented those democracies were also “raised up” by God for that very purpose. In any case, the church remains anchored in the United States and its constitutional protections, where, hopefully, there may be “at last, a democracy without exceptions.”995 If the Mormons ought to have taken any lesson from the debacle over polygamy, it is that “while God may be above the Constitution, churches are not.”996 The church owes it to them and to those ideals not to corrupt the light by breaching the wall of separation and further establishing the theopolitik of fear and hatred—not, in other words, to become embroiled in, nor to potentiate, the ecclesiastical-political complex. Until that realization comes to pass, the Church of Jesus Christ of Latter-day Saints and its cohorts in the coalition of churches can know one thing certainly. It is that in their divisive appeals to politics, they have fulfilled to the letter the words of Jesus in this chilling prophecy: “I came not to send peace, but a sword. For I am come to set a man at variance against his father, and the daughter against her mother, and the daughter in law against her mother in law. And a man’s foes shall be they of his own household.”997

Even as the same-sex marriage wars seems to be reaching the end-stage, new battles emerge in the LGBT context, particularly with regard to the “T” portion of that acronym, transgenderism. As Michelangelo Signorile has recently put it, “It’s Not Over.”998 Inequality remains, and as the Book of Mormon teaches, “And thus we see how great the inequality of man is because of sin and transgression, and the power of the devil, which comes by the cunning plans which he hath devised to ensnare the hearts of men.”999 Quite literally, we are bedeviled by inequality. The abolition by the Mormon church of polygamy and The Negro Priesthood Doctrine (by Official Declaration-I, and Official Declaration-II) already give the lie to the church’s argument at page 34 of the 2015 amicus brief:


These beliefs about marriage are not going away. Cherished by billions of believers worldwide and tens of millions in the U.S., these doctrines will not change based on federal court decisions, much less the shifting tides of public opinion. They are tied to theology, religious and family practices, and entire ways of life. They are no less essential to the dignity and identity of millions of Americans than petitioners’ sexual orientation is to them.
Of course they will “go away” and they will change “based on federal court decisions” and the “shifting tides of public opinion,” despite being “tied to theology, religious and family practices, and entire ways of life.” They did with polygamy, and they did with The Negro Priesthood Doctrine. They can, and likely will, with same-sex marriage, as well.
April 15, 2015

1 B.A. and M.A., Brigham Young University 1972 and 1973; Juris Doctor, University of Utah 1980; PhD, University of Hong Kong Faculty of Law 2007.


2 Doctrine and Covenants 121:41. This volume of Mormon scripture will be abbreviated as D&C hereafter. There are four volumes of official Mormon scripture called “The Standard Works.” They are the King James Version (KJV) Bible, the Book of Mormon, the D&C, and the Pearl of Great Price. My stating them in this order does not imply any order of precedence—all four stand on equal footing. However, as I will discuss later, Joseph Smith called the Book of Mormon “the most correct of any book on earth, and the keystone of our religion.” Joseph Smith, History of the Church 4:461. Nevertheless, for present purposes, the D&C is probably first among equals because it is the only book purporting to be modern Mormon scripture created within a modern constitutional polity—the United States. The church has made and continues to make changes to the texts of the Book of Mormon, D&C, and Pearl of Great Price. Joseph Smith made an “inspired translation” of the Bible which amended many of its texts, and the Book of Mormon claims to be relevant to modern society because its contents were selected by revelation that revealed modern society to its ancient authors. See Book of Mormon, Mormon 8:35. The “inspired version” is published by the Community of Christ, which used to be named the Reorganized Church of Jesus Christ of Latter-day Saints; . The text of the Inspired Version or “Joseph Smith Version” (JSV) may be found online at ; seen June 2, 2005. Joseph Smith (1805-1844), the founder of Mormonism, is actually Joseph Smith, Jr., whose father was Joseph Smith, Sr. Joseph F. Smith (1838-1918), who is mentioned several places in this study, was the sixth president of the church and the nephew of Joseph Smith, Jr., being the son of Joseph’s brother, Hyrum. An official biography of Joseph F. Smith may be read online at ; seen August 23, 2008.


3 See official Mormon statement, dated Dec. 6, 2013, “Race and the Priesthood,” at .


4 See official Mormon statements, dated Oct. 26, 2014, “Plural Marriage in Kirtland and Nauvoo,” at ., and “Plural Marriage and Families in Early Utah,” at .; and “The Manifesto and the End of Plural Marriage,” at .


5 Dallin H. Oaks and Marvin S. Hill, Carthage Conspiracy: The Trial of the Accused Assassins of Joseph Smith (Champaing, IL: University of Illinois Press, 1975).


6 N. B. Lundwall, The Fate of the Persecutors of the Prophet Joseph Smith (Salt Lake City: Bookcraft, 1952). Nels Benjamin Lundwall was a secretary to the church’s First Council of the Seventy from 1918-1930. Afterwards, he wrote about and researched Mormon history and doctrine. He was born in 1884 and converted to the Church in 1904. LDS Church History Library Reference Section, personal correspondence, December 3, 2009. Further discussion of Lundwall’s myth-making may be read in Richard C. Poulsen, “Fate and the Persecutors of Joseph Smith: Transmutations of An American Myth” (1979) 11(4) Dialogue: A Journal of Mormon Thought 63.


7 New Testament, Hebrews 10:31.


8 New Testament, Romans 12:19; Book of Mormon, Mormon 3:15.


9 Carthage Conspiracy, p. 217.


10 D&C 9:8.


11 Book of Mormon, Alma 4:19.


12 John Mortimer, Rumpole of the Bailey, “Rumpole and the Learned Friends” (New York: Penguin, 1983), p. 167.


13 Joseph Fielding Smith, Man: His Origin and Destiny (Salt Lake City: Deseret Book Co., 1954), p. 1; emphasis added.


14 Ibid. at 264.


15 Id.


16 Id. at 280.


17 New Testament, 1 Corinthians 15:22; Pearl of Great Price, Moses 3:16.


18 D&C 78:15, 107:53-57, and 116:1.


19 D&C 137:5, 138:38.


20 D&C 27:11, 29:26, 78:16. And 107:54.


21 New Testament, Revelation 12:7-17; D&C 88:112-15.


22 D&C 128:20-21.


23 Pearl of Great Price, Moses 6:57, 7:35.


24 Lorenzo Snow, The Latter-day Saints’ Millennial Star 54:404 (no. 26, June 27, 1892); report of proceedings of the church’s general conference. A collection of information about the statement, including is modern downplaying by the church, may be read online at ; seen December 21, 2009.


25 Joseph Smith, “King Follet Discourse” (15 Aug. 1844) 5 Times & Seasons 612; Journal of Discourses 6:1, 3. Joseph Fielding Smith (ed/comp), Teachings of the Prophet Joseph Smith, (Salt Lake City: Deseret Book, 1938), pp. 342-345. The discourse may also be read online at ; seen August 12, 2008. The relevant passage is this:
“God himself, who sits enthroned in yonder heaven, is a man like one of you. That is the great secret. If the veil were rent today and you were to see the great God who holds this world in its orbit and upholds all things by his power, you would see him in the image and very form of a man; for Adam was created in the very fashion and image of God. He received instruction from and walked, talked, and conversed with him as one man talks and communes with another…. God himself, the Father of us all, dwelt on an earth the same as Jesus Christ himself did….”


26 The full status of Noah in Mormon scripture is summarized in the article on the church’s Web page at ; seen November 21, 2009.


27 Joseph Smith, History of the Church 3:386.


28 New Testament, Luke 1:26:38.


29 Book of Mormon, Ether 6:7 and 13:2; D&C 138:9; Pearl of Great Price, Moses 7:34-43, 8:8-30.


30 D&C 138:41.


31 The First Presidency of the Church (Joseph F. Smith, John R. Winder, Anthon H. Lund), “The Origin of Man” (Nov. 1909) The Improvement Era 75-81; reprinted as “Gospel Classics: The Origin of Man” (Feb. 2002) Ensign 26; emphasis added. Coincidentally, perhaps, 1909 was the year Wilhelm Johannsen coined the word “gene” ("gen" in Danish and German) when he abbreviated the term “pangen” which Hugo de Vries had used in 1889 to discuss the concept now attributed to Mendel.


32 Old Testament, Genesis 1:27 and 5:2; D&C 20:18; Pearl of Great Price, Moses 6:9.


33 Todd B. Parker and Robert Norman, “Moses: Witness of Jesus Christ” (Apr. 1998) Ensign 24-36.


34 Boyd K. Packer, “The Law and the Light” in Monte S. Nyman and Charles D. Tate eds, The Book of Mormon: Jacob Through the Words of Mormon, To Learn with Joy, Papers from the Fourth Annual Book of Mormon Symposium (Provo, Utah: Brigham Young University Religious Studies Center, 1990), pp. 1-31; emphases added. The speech was delivered on October 30, 1988. The “plan” referred to is commonly called The Plan of Salvation. The word “penalty” is wholly confined to Mormon scripture, Book of Mormon, Alma 12:32; D&C 82:4, 138:59, although the idea has cognates in the other books of scripture—for example, “the last farthing” of New Testament, Matthew 5:26 and Luke 12:59.


35 New Testament, Ephesians 2:20.


36 See Book of Mormon, 2 Nephi 28:22.


37 Alexander Pope, “An Essay on Man” Epistle II, lines 1-2.



38 First Presidency, “Origin”; emphasis added.


39 New Testament, Galatians 3:8.


40 D&C 107:42-56.


41 A similar point is made by James Madison, arguing for the pre-existence of the Christian religion, in his defense of the total separation of church and state. See Madison’s “Memorial and Remonstrance” paragraph 6, in Garrett Ward Sheldon, “Religion and the Presidency of James Madison” in Gastón Espinosa, ed. Religion and the American Presidency: George Washington to George W. Bush (New York: Columbia University Press, 2009), pp. 111-48; 141, 144, 148 passim.


42 Richard Dawkins, The Greatest Show on Earth: The Evidence for Evolution (New York: Free Press, 2009), pp. 22 passim, discussing the work of Ernst Mayr, The Growth of Biological Thought: Diversity, Evolution, and Inheritance (Cambridge, Mass: Harvard University Press, 1982).


43 Louis A. Berman, The Puzzle: Exploring the Evolutionary Puzzle of Male Homosexuality (Wilmette, IL: Godot Press, 2003); N. J. Peters, Conundrum: The Evolution of Homosexuality (Bloomington, Indiana: AuthorHouse 2006); Jim McKnight, Straight Science? Homosexuality, Evolution and Adaptation (New York: Routledge, 1997).


44 New Testament, 1 Corinthians 12:21.


45 Robert J. Morris, “’What Though Our Rights Have Been Assailed?’ Mormons, Politics, Same-Sex Marriage, and Cultural Abuse in the Sandwich Islands (Hawaii)’” (1997) 18(2) Women’s Rights Law Reporter 129, esp. notes 211-214 and accompanying text (esp. the discussion of Mormon apostles J. Reuben Clark, Jr., and Bruce R. McConkie); Robert J. Morris, “Both ‘New’ and ‘Everlasting’: Law and Religion in the Creation of Neo-Mormon Doctrine on (Homo)sexuality” (2005) 6 Rutgers Journal of Law & Religion (PDF) (esp. the discussion of Mormon apostle Bruce R. McConkie), which may be read online at .


46 Niles Eldredge, The Triumph of Evolution and the Failure of Creationism (New York: W. H. Freeman & Co., 2000).


47 J[ames] D. Watson and F[rancis] H[arry] C[Compton]Crick, “Molecular Structure of Nucleic Acids: A Structure for Deoxyribose Nucleic Acid” (1953) 171 Nature 737.


48 Kent C. Condie, “Premortal Spirits: Implications for Cloning, Abortion, Evolution, and Extinction” (2006) 39(1) Dialogue: A Journal of Mormon Thought 35 (God may operate through evolution even though “science cannot detect, identify, or even validate the existence of spirits”). Condie raises, but does not resolve, the problems of gender and sexuality in this context. A much more rigorous approach appears in Dean H. Leavitt, Jonathon C. Marshall, and Keiith A. Crandall, “The Search for the Seed of Lehi: How Defining Alternative Models Helps in the Interpretation of Genetic Data” (2003) 36(4) Dialogue: A Journal of Mormon Thought 134; and Thomas Murphy, “Simply Implausible: DNA and a Mesoamerican Setting for the Book of Mormon” (2003) 36(4) Dialogue: A Journal of Mormon Thought 110. See also the recent impassioned defense of the factuality of the Book of Mormon by Mormon Apostle Jeffrey R. Holland, “Safety for the Soul” (2009), which may be read online at ; seen November 1. 2009. The video of Holland’s speech should be viewed in order to appreciate the full tone of his words.


49 D&C 88:15.


50 Ibid. at 40 passim; quoting with approval John William Draper, Conflict Between Religion and Science, X-XII (not other bibliographical data given).


51 Man, ibid. at 115.


52 Id. at 4.


53 I deal with these matters at greater length in Robert J. Morris, “’What Though Our Rights Have Been Assailed?’ Mormons, Politics, Same-Sex Marriage, and Cultural Abuse in the Sandwich Islands (Hawaii)’” (1997) 18(2) Women’s Rights Law Reporter 129.


54 US Constitution, Preamble. John F. Wilson, ed. Church and State in America: A Bibliographical Guide (New York: Greenwood Press, 1986), is a useful source on the subject.


55 The names, dates of service, and portraits of all the Mormon presidents may be viewed online at ; seen December 3, 2009.


56 At ; seen December 7, 2009.


57 Paul Edwards, “Professor Tillich’s Confusions” (1965) 74 Mind 192, 206-08.


58 Man, ibid. at 5.


59 Book of Mormon, Jarom 1:2, Alma 24:14 and 42:5; Pearl of Great Price, Moses 6:62.


60 New Testament, Acts 15:28.


61 Pearl of Great Price, Moses 1:32; emphasis added.


62 Random Hearts, directed by Sydney Pollack, screenplay by Kurt Luedtke; Columbia Pictures Corporation, Mirage Enterprises, and Rastar Pictures (1999).


63 Ernest Hemingway, A Moveable Feast (New York: Charles Scribner’s Sons, 1964), p. 133.


64 Andrei Navrozov, Review of Fyodor Dostoevsky, The Brothers Karamazov: A Novel in Four Parts With Epilogue. Richard Pevear and Larissa Volokhonsky, trans (San Francisco: North Point Press, 1990), in New York Times Book Review (Nov. 11, 1990): 62; which may be read online here:


65 See generally Jacqueline Tavernier-Courbin, Ernest Hemingway’s A Moveable Feast: The Making of Myth (Boston: Northeastern University Press, 1991).

66 This situation no longer surprises me as I have learned that nearly all translators are liars. Robert J. Morris, “Translators, Traitors, and Traducers: Perjuring Hawaiian Same-Sex Texts Through Deliberate Mistranslation” (2006) 51(3) Journal of Homosexuality 225.


67 Frank Spencer, Piltdown: A Scientific Forgery (New York: Oxford University Press (for National History Museum Publications), 1990); Frank Spencer, The Piltdown Papers 1908-1955: The Correspondence and Other Doucments Relating to the Piltdown Forgery (New York: Oxford University Press, for National History Museum Publications), 1990).


68 Anne Frank, The Diary of Anne Frank: The Critical Edition, eds. David Barnouw and Gerrold Van Der Stroom; trans. Arnold J. Pomerans and B. M. Mooyaart (New York: Doubleday, 1989).


69 Robert J. Morris, “Not Thinking Like a Nonlawyer: Implications of ‘Recogonization’ for Legal Education” (2003) 53(2) Journal of Legal Education 267, 278-79.


70 New Testament, Hebrews 11:1.


71 New Testament, Romans 8:16.


72 Wigmore.


73 Quoted in Truman G. Madsen, Forward, Truman G. Madsen (ed), Nibley on the Timely and the Timeless: Classic Essays of Hugh W. Nibley (Provo, UT: Brigham Young University Religious Studies Center, 1978), p. xiv.


74 Brigham Young, Letter to Mormon Apostle Orson Hyde, July 20, 1849, quoted in J. Keith Melville, “Brigham Young on Politics and Priesthood” (1970) 10(4) Brigham Young University (BYU) Studies 488, 489.


75 In re Marriage Cases, 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] (2008),


76 Kenji Yoshino, Speak Now: Marriage Equality on Trial, The Story of Hollingsworth v. Perry (New York: Crown Publishing/Penguin, 2015).


77 See the article, “California and Same-Sex Marriage” on the church’s Web page at . Additional information may be read at , which is the Web sit of Affirmation: Gay and Lesbian Mormons. A good collection of information of Mormonism and homosexuality may be found in Connell O’Donovan, “The Etiology of Homosexuality from Authoritative Latter-day Saint Perspectives, 1879-2006,” online at ; seen August 21, 2008.


78 Not all Mormons supported their church’s official position. For a contrary view, see, e.g. ; seen July 21, 2009.


79 In any discussion of American politics, the word “state” must of course be defined. Unless otherwise noted, I use the word here as it is meant in the phrase “church and state”—the governmental power, the general political power or hegemony or body politic, in its collective nature—and not as “a state” such as California; although, obviously both terms can be, and often have been, conflated under certain circumstances. I take it that the former meaning of state = government is intended, for example, in this comment: “…governments should not regulate the church, nor the church seek to control the state….” Wilford Woodruff, The Discourses of Wilford Woodruff, Fourth President of the Church of Jesus Christ of Latter-day Saints. G. Homer Durham (ed) (Salt Lake City: Bookcraft, 1969), p. 193. This definitional problem is further complicated by the fact that before Everson v. Board of Education, 330 US 1 (1947), the First Amendment was considered to apply only to the federal government, not to state (e.g., Utah)-established religions and churches.


80 The argument is often heard among Mormons that it is individual Mormons and not “the church” that is politically active—a distinction without a difference, as I will discuss later.


81 New Testament, Matthew 22:30, Luke 20:35. A useful starting place for the Mormon position is the discussion by two of the church’s general authorities at “Same-Gender Attraction” online at ; seen August 30, 2008.


82 I use Mormondom and Christendom, as opposed to Mormonism and Christianity, intentionally because the Latin suffix (as in kingdom) indicates their respective spheres of political and social dominion as opposed to systems of doctrine and belief. To the greatest extent possible, I have attempted to represent Mormon beliefs in the words and texts of the Mormons themselves in order to avoid the problem of “translating” the ideas of one religious world into the language of another world. James Boyd White, How Should We Talk About Religion: Inwardness, Particularity, and Translation (Notre Dame, IN: University of Notre Dame/Erasmus Institute, 2001), p. 9.


83 Kevin Phillips, American Theocracy: The Peril and Politics of Radical Religion, Oil, and Borrowed Money in the 21st Century (New York: Penguin Books, 2006), p. 208; hereafter Phillips American Theocracy. Phillips provides a rich bibliography of writings on the subjects under consideration here. Also useful is Russell J. Upton, “Bob Jonesing Baden-Powell: Fighting the Boy Scouts of America’s Discriminatory Practices by Revoking Its State-Level Tax-Exempt Status” (2001) 50 American University Law Review 793. Losing tax-exempt status and corporate donations would be “fiscal suicide.” Ibid. pp. 857-58. Hence the need to craft a minimally acceptable and qualifying public theology—steps the Mormons took in abandoning polygamy and others of its more noxious doctrines and practices..


84 For a basic modern statement of the Mormon position on faith, see Gordon B. Hinckley, “The Miracle of Faith,” (May 2001) Ensign 67, and which may also be read online at ; seen December 23, 2005. Hinckley was the president of the church until his death on January 27, 2008.


85 D&C 36:2, 39:6, and 42:61.


86 New Testament, Luke 16:13, Matthew 6:24; Book of Mormon, 3 Nephi 13:24.


87 Dorothy Glancy, “Getting Government Off the Backs of People: The Right of Privacy and Freedom of Expression in the Opinions of Justice William O. Douglas” (1981) 21 Santa Clara Law Review 1047, collects and analyzes the many sources of this idea.


88 New Testament, Romans 1:16.


89 Verse 5 of Mormon hymn #85 “How Firm a Foundation”.


90 Old Testament, Exodus 14:21-22.


91 Pearl of Great Price, Moses 7:48.


92 New Testament, Matthew 14:25-29.


93 Book of Mormon, Ether 3:4-6.


94 New Testament, Luke 4:10-11.


95 D&C 76:22-23; Pearl of Great Price, Joseph Smith—History 1:17.


96 Moses Thatcher, Discourse, Journal of Discourses 26:327, 328 (Oct. 8, 1885); emphasis added.


97 Benjamin Franklin to Richard Price, October 9, 1780. Quoted in Philip B. Kurland and Ralph Lerner (eds), The Founders’ Constitution (Indianapolis: Liberty Fund and University of Chicago Press, vol 4, 1987), p. 634; emphasis added; collecting notes and comments on Article 6, Clause 3, of the Constitution, a part of which prohibits as a qualification for public office. Franklin’s statement is quoted in Jon Meacham, “What Romney Should Say” (Dec. 5, 2007) Newsweek, which may be read online at ; seen December 4, 2009.


98 Shakespeare, Hamlet, Act III, scene i.


99 Book of Mormon, 1 Nephi 22:23, 2 Nephi 26:20, Mormon 8:33.


100 Book of Mormon 1 Nephi 22:23; emphasis added.


101 New Testament, John 14:30; D&C 127:11.


102 Huge numbers of volumes have been written on this question. One good summary of the arguments is Dean M. Kelley, “The Intermeddling Manifesto, or The Role of Religious Bodies in Affecting Public Policy in the United States” (1990) 8(1/2) Journal of Law and Religion 85.


103 Some history of the various legal forms of marriage is given in Meisher v. Moore, 96 US 76 (1877).


104 D&C 1:30. Boyd K. Packer, “The Only True and Living Church” (Dec. 1971) Ensign 40 (fear of empty churches and atheism), explores some implications of this slogan.


105 D&C 121:33.


106 D&C 1:21.


107 D&C 3:1, 3.


108 D&C 121:44-45.


109 New Testament, Matthew 17:17, Mark 9:19, Luke 9:41.


110 Book of Mormon, Alma 4:10-11.


111 Old Testament, Psalm 56:11.


112 Old Testament, Deuteronomy 1:17.


113 Book of Mormon, Moroni 8:16; D&C 30:11, 122:9.


114 Book of Mormon, Moroni 8:16; “love unfeigned,” D&C 121:41.


115 Hymns no. 237; emphasis added.


116 For an official statement in this regard, see “Polygamy: Latter-day Saints and the Practice of Plural Marriage” online at ; seen September 1, 2006.


117 Kathleen Flake, The Politics of American Religious Identity: The Seating of Senator Reed Smoot, Mormon Apostle (Chapel Hill: University of North Carolina Press, 2004), p. 7; hereafter Flake Politics. Polygamy was introduced, according to Mormon leaders, because an “angel with drawn sword” threatened Joseph Smith with destruction unless he did so. Joseph F. Smith, “Plural Marriage for the Righteous Only—Obedience Imperative—Blessings Resulting,” Journal of Discourses 20:28-29.


118 New Testament, Ephesians 4:13; Book of Mormon, Mosiah 18:21.


119 Of the many studies on polygamy, a useful recent study is Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (Chapel Hill, NC: Univ. of North Carolina Press, 2002).


120 D&C 135:3.


121 Maggie Gallagher, “Massachusetts vs. Marriage” (Dec. 1, 2003) The Weekly Standard, quoted in C. Terry Warner, “How the Order of Marriage Has Shaped Us All, and What We Will Lose If We Change It,” address given to the BYU Families Under Fire Conference, October 4-5, 2004, which may be read online at ; seen March 25, 2008. I assume that Gallagher’s comments, as well as Warner’s use of them, are a reaction, at least in part, to Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2nd 941 (2003) (equality protections of Massachusetts constitution protect same-sex unions).


122 Ernst Troeltsch, The Social Teaching of the Christian Churches, trans. Olive Wyon (Louisville: Westminster/John Knox Press, vol 1, 1992), p. 145; hereafter Troeltsch Christian Churches.


123 R. Randall Rainey, “Law and Religion: Is Reconciliation Still Possible?” (1993) 27 Loyola of Los Angeles Law Review 147, 154. In his footnote 34, Rainey, S.J., states:
“As is the case with virtually all contemporary Catholic intellectuals, I oppose theocracy on moral, theological, and constitutional grounds. However, I believe that religious liberty fully justifies the political action of religious organizations and the admissibility of religious-ethical argumentation in public debate for the purposes of increased mutual understanding and personal deliberation.”
But one must ask: Is not the purpose of such political action and argumentation, like all such, ultimately to get itself accepted and enacted into law? Certainly, that has been the position of his church and its popes, if not its intellectuals.


124 New Testament, Matthew 5;13; Book of Mormon, 3 Nephi 12:13 and 16:15; D&C 101:39-40 and 103:10.


125 New Testament, 1 Corinthians 5:6-7, Galatians 5:9.


126 Pearl of Great Price, Articles of Faith, Article 4. In Mormon literature the statements on the importance and centrality of faith are so numerous as not to need extensive citation.


127 New Testament, Matthew 6:5, 23:5, 23; Book of Mormon, 3 Nephi 13:5.


128 New Testament, Colossians 2:18; Book of Mormon, 3 Nephi 6:15.


129 The phrase belongs to Frank Swancara, Obstruction of Justice by Religion (Denver: Courtright Publishing Co, 1936), pp. 125-30; hereafter Swancara Obstruction.


130 Book of Mormon, 2 Nephi 9:23.


131 Old Testament, Proverbs 4:18; D&C 50:24.


132 See, e.g., John Dunn, The Cunning of Unreason: Making Sense of Politics (London: HarperCollins, 2000), p. 356-57; Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy (New York: Norton, 1995).


133 Not a few of which may be found on The Phobia List at ; seen January 23, 2006.


134 D&C 6:34; compare D&C 35:27 and 122:9.


135 New Testament, 2 Timothy 1:7.


136 New Testament, Luke 2:10. See also, as but one of hundreds of examples, Gordon B. Hinckley, “An Ensign to the Nations, a Light to the World” (Nov. 2003) Ensign 82.


137 Old Testament, Deuteronomy 32:25.


138 Book of Mormon, 3 Nephi 22:14; Old Testament, Isaiah 54:14.


139 Francis M. Lyman, Discourse, Journal of Discourses 25:60 (February 24, 1884).


140 “The earth is the Lord’s, and the fulness thereof” quotes Old Testament, Psalm 24:1, and New Testament, 1 Corinthians 10:26.


141 Pearl of Great Price, Joseph Smith—History 1:19, emphasis added; compare Old Testament, Isaiah 29:10-14; New Testament, 2 Timothy 3:1-7.


142 US Constitution, Art. VI, Clause 3. Gerard V. Bradley, “The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself” (1987) 37 Case Western Reserve Law Review 674, hereafter Bradley “Machine”, discuss the history and application of the clause; see also construction of this clause in Feminist Women’s Health Center v. Codispoti, 69 F.3d 399 (1995) (discussing, inter alia, the Mormon Church and abortion). See also Torcaso v. Watkins, 367 US 488 (1961) (striking down on First Amendment grounds a Maryland test that barred from public office those who did not declare their belief in God). A recent seminal case involving “intelligent design” in the public school curriculum deals with religious tests, although it does not mention this section of the Constitution. Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707 (US District Court for the Middle District of Pennsylvania, Dec. 20, 2005), available online at ; seen December 30, 2005; hereafter Kitzmiller. The basic Mormon anti-evolution text is Joseph Fielding Smith, Man: His Origin and Destiny (Salt Lake City: Deseret Book Co., 1954). Susan Dunn, Something That Will Surprise the World: The Essential Writings of the Founding Fathers (New York: Basic Books, 2006), hereafter Dunn Surprise, assembles many documents on the evils of “religious tests” and church-state separation.


143 Doctrine and Covenants 121:41. This volume of Mormon scripture will be abbreviated as D&C hereafter. There are four volumes of official Mormon scripture called “The Standard Works.” They are the Bible, the Book of Mormon, the D&C, and the Pearl of Great Price. My stating them in this order does not imply any order of precedence—all four stand on equal footing. Nevertheless, for my purposes here, the D&C is probably of primary importance because it is the only book of modern scripture created within a modern constitutional polity—the United States. Joseph Smith made an “inspired translation” of the Bible which amended many of its texts, and the Book of Mormon claims to be relevant to modern society because its contents were selected by revelation that revealed modern society to its ancient authors. See Book of Mormon, Mormon 8:35. The “inspired version” is published by the Community of Christ, which used to be named the Reorganized Church of Jesus Christ of Latter-day Saints; . The text of the Inspired Version or “Joseph Smith Version” (JSV) may be found online at ; seen June 2, 2005.


144 US Constitution, Art. IV, Sec. 1.


145 US Constitution, Art. IV, Sec. 2, Clause 1.


146 William Gorman, “Problems of Church and State in the United States: A Catholic View” in Dallin H. Oaks (ed), The Wall Between Church and State (Chicago: University of Chicago Press/Phoenix Books, 1963), pp. 41-54, 47. The editor, Dallin H. Oaks, who is now a Mormon apostle to be discussed extensively in this study, was then an associate professor of law at the University of Chicago.


147 The 1881 interview of Ingersoll that contained this statement may be read online at ; seen December 3, 2005; emphasis added. The context of the statement is discussed in Swancara Obstruction at pp. 226 passim.


148 Dallin H. Oaks, “Religious Freedom,” speech given at Brigham Young University-Idaho on October 13, 2009, which may be found online at ; seen October 12, 2009.


149 A reference to the lyrics of “God Moves in a Mysterious Way,” LDS Hymns No. 285
“Ye fearful Saints, fresh courage take

The clouds ye so much dread

Are big with mercy and shall break

In blessings on your head.


“Blind unbelief is sure to err

And scan his works in vain;

God is his own interpreter

And he will make it plain.”




150 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J, dissenting).


151 New Testament, Acts 17:26.


152 The early constitutions are reproduced in most competent histories and compilations of laws of Hawaii. This text may also be read online at ; seen November 30, 2005.


153 Gidon Sapir and Daniel Statman, “Why Freedom of Religion Does Not Include Freedom from Religion” (2005) 24(5) Law and Philosophy 467, assembles the arguments and bibliography on this view. See also Daphne Barak-Erez and Ron Shapira, “The Delusion of Symmetric Rights” (1999) 19 Oxford Journal of Legal Studies 297.


154 Such an interpretation is consistent with, for example, contemporaneous views in Massachusetts. Swancara Obstruction at pp. 271-72.


155 See, e.g., Daniel L. Dreisbach and Jeffry H. Morrison, “Religion and the Presidency of George Washington” in Gastón Espinosa, ed. Religion and the American Presidency: George Washington to George W. Bush (New York: Columbia University Press, 2009), pp, 47-75, citing numerous examples of Washington’s use of this terminology.


156 “[W]e are likely to make the legal ‘wall of separation between church and state’ as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded.” McCollum v. Board of Education, 333 US 203, 238 (1948) (Jackson J concurring).


157 D&C 1:30.


158 New Testament, Revelation 19:6; Book of Mormon, Mosiah 3:5, 17-18, 21; 5:2, 15.


159 Old Testament, Isaiah 40:12.


160 New Testament, Acts 7:48, 17:24.


161 Dallin H. Oaks, “Religious Freedom,” speech given at Brigham Young University-Idaho on October 13, 2009, which may be found online at ; seen October 12, 2009; original emphasis. Oaks is a former law professor, president of Brigham Young University (Provo, Utah), and justice of the Utah Supreme Court.


162 Dallin H. Oaks, “Where Will It Lead?” speech delivered at Brigham Young University (Provo, Utah), November 9, 2004, available online at ; seen August 25, 2009.


163 Elliot L. Richardson, “On Behalf of Obligations” (1973) 8 Lincoln Law Review 109.


164 Brigham Young, JD 10:39-41 (March 9, 1862). The centrality of this speech to the study of these subjects vis-à-vis Mormonism cannot be overstated. It should be required reading for anyone entering the discussion.


165 John Taylor, JD 5:155 (Aug. 23, 1857); JD 11:92 (Mar. 5, 1865); JD 23:67 (April 9, 1882).


166 Orson Pratt, JD 8:111 (July 4, 1860).


167 D&C 132 headnote; the revelation on plural marriage was “recorded 12 July 1843.” Historians point out that it was practiced in secret long before that.


168 Joseph Fielding Smith (ed), Teachings of the Prophet Joseph Smith (Salt Lake City: Deseret Book, 1938), p. 279. (Feb. 25, 1843); Joseph Smith, History of the Church (Salt Lake City: Mormon Church, vol 5, 1858), pp. 289-290.


169 Book of Mormon, 1 Nephi 10:19, Alma 7:20, 37:12; D&C 3:2, 35:1.


170 New Testament, Matthew 19:5-6.


171 See papers and discussion at ; seen August 23, 2008.


172 New Testament, Luke 20:35; see also Matthew 22:30.


173 Russell M. Nelson, “Celestial Marriage” available onling at ; seen October 1, 2009.


174 Dallin H. Oaks, “Resurrection” (May 2004) Ensign 14.


175 Robert J. Morris, “Both ‘New’ and ‘Everlasting’: Law and Religion in the Creation of Neo-Mormon Doctrine on (Homo)sexuality” (2005) 6 Rutgers Journal of Law & Religion (PDF), which may be read online at .


176 David A. Bednar, “Marriage Is Essential to His Eternal Plan” which is available online at ; seen August 13, 2009.


177 Book of Mormon, 3 Nephi 27:27.


178 D&C 131:1-4; emphasis added.


179 William Shakespeare, The Merchant of Venice, Act IV, scene 1, line 383.


180 “Mormon” is the nickname for the Church of Jesus Christ of Latter-day Saints. Another nickname is “LDS” for the initials of Latter-day Saints. Originally a pejorative, the term today is simply a neutral shorthand appellation, which is the sense in which I use it here. The church was officially organized on April 6, 1830, by Joseph Smith and five others. D&C sec. 20.


181 As noted in its text, this “Proclamation” was read by church President Gordon B. Hinckley as part of his message at the General Relief Society Meeting held September 23, 1995, in Salt Lake City, Utah. The text may also be read online at the church’s official Web page at this address: . The Relief Society is the church’s women’s organization. See “The Proclamation on the Family: A Ten Year Assessment,” available online at ; seen December 2, 2005.


182 The "Statement" is dated October 19, 2004, and was published soon thereafter on the church's official Web page where it remained for the two weeks just prior to the November 2, 2004, United States election that re-elected George W. Bush. The text may also be read online at the church’s official Web page online at: . See also the testimony of Richard G. Wilkins, professor of law at Brigham Young University, before the US Senate Judiciary Committee regarding the Defense of Marriage Act (DOMA), September 4, 2003; information about Wilkins may be read at ; seen July 5, 2005. Monte Neil Stewart and William C. Duncan, “Marriage and the Betrayal of Perez and Loving” (2005) 2005 Brigham Young University Law Review 555 (hereafter Stewart and Duncan “Betrayal”)disingenuously refer to same-sex marriage as “genderless marriage.”


183 Readers without a substantial background in Mormonism particularly vis-à-vis these issues may also want to read Robert J. Morris, “’What Though Our Rights Have Been Assailed?’ Mormons, Politics, Same-Sex Marriage, and Cultural Abuse in the Sandwich Islands (Hawaii)’” (1997) 18(2) Women’s Rights Law Reporter (hereafter Morris “Assailed”); 129-203; and Robert J. Morris, “Both ‘New’ and ‘Everlasting’: Law and Religion in the Creation of Neo-Mormon Doctrine on (Homo)sexuality” (2005) 6 Rutgers Journal of Law & Religion (PDF), hereafter Morris “Law and Religion,” which may be read online at . The first article documents the church’s “lying for the Lord” during its political activity in opposition to same-sex marriage in Hawaii during the 1990s. The recent Kitzmiller case contained a great deal of this “mendacity.” See Kitzmiller, id., at pp. 113-15.
Three general studies that help to locate Mormonism in the discourse of American civil society and law are Leonard J. Arrington, Great Basin Kingdom: An Economic History of the Latter-day Saints 1830-1900 (Cambridge, MA; Harvard University Press, 1958); Therald M. Jensen, “Mormon Theory of Church and State” (unpub. PhD Diss., University of Chicago, 1938); and Gaylon L. Caldwell, “Mormon Conception of Individual Rights and Political Obligation” (unpub. PhD Diss., Stanford University, 1952). Both of these works are cited in Leonard J. Arrington, Great Basin Kingdom: An Economic History of the Latter-day Saints 1830-1900 (Cambridge, MA: Harvard University Press, 1958), p. 420. These sources are especially useful in comparing Mormon ideas of church-state relations prior to the advent of the debates over the Equal Rights Amendment (ERA) and same-sex marriage. For a Mormon view, see Boyd K. Packer, “The Equal Rights Amendment” (March 1977) Ensign 6.


184 New Testament, Matthew 24:38; Pearl of Great Price, Moses 8:21.


185 D&C sec. 132.


186 According to B. H. Roberts, A Comprehensive History of the Church of Jesus Christ of Latter-day Saints: Century I (Salt Lake City: Deseret News Press, vol 5, 1930), p. 300 (emphasis added), the eugenic purpose of polygamy was:
“…to enlarge the opportunity of superior men and women to devote themselves to the establishment of a consecrated fatherhood and motherhood within the church…it would have afforded the opportunity of producing from that consecrated fatherhood and motherhood the improved type of man the world needs to reveal the highest possibilities of the race, that the day of the super-man might come, and with him might come also the redemption and betterment of the race.”


187 “Church Supports Call for Constitutional Amendment” online at ; seen April 25, 2006. No mention is made of outlawing serial monogamy, i.e., repetitive divorces and remarriages.


188 The Mormon use of the word “quorum” is special and, so far as I know, unique. The word appears only in the D&C, and only starting with Section 107 (1835)—fairly late in Joseph Smith’s ministry. Except in a few instances, D&C 107:28 for example, it does not mean “a stated number of people, usually a majority of the official members of an organization, without whom a meeting cannot be held or business transacted,” as used in parliamentary procedure. Rather, it means the designations of various groups of priesthood-holding men of the same rank. See sources and definitions collected at ; seen October 12, 2005. Thus, to belong to a quorum for a male Mormon is to be part of an institutional homosocial bond group. Perhaps most arresting is the description and comparison of the Quorum of the First Presidency, the Quorum of the Twelve Apostles, and the Quorum of the Seventy at D&C 107:27 thus: “And every decision made by either of these quorums must be by the unanimous voice [i.e., not a quorum] of the same; that is, every member in each quorum must be agreed to its decisions, in order to make their decisions of the same power or validity one with the other….” The “several quorums…constitute the spiritual authorities of the church” from which or whom there is “no appeal.” D&C 107:32. There are no “quorums” of women. Even the official meetings of the Relief Society, the church’s organization of women, are presided over by a member of a male quorum, usually the First Presidency. See, e.g., James E. Faust, “Instruments in the Hands of God,” address given at the General Relief Society Meeting, October 2005, ; seen October 15, 2005; also Boyd K. Packer, “The Relief Society” (May 1998) Ensign 72..


189 D&C 107:33.


190 The church and its apologists have made a complete about-face on polygamy, not only eschewing it as a church doctrine, but pretending it never existed in practice and that to condemn it has always been the proper course—i.e., that “traditional” monogamous one-man-one-woman marriage has always been the norm. See, e.g., Daniel H. Walker, “Are State Marriage Amendments Bills of Attainder?: A Case Study of Utah’s Amendment Three” (2005) 2005 Brigham Young University Law Review 799, 813, 815, 822, 834; hereafter Walker “Attainder.” In perhaps his oddest passage, Walker cites Montesquieu’s The Spirit of the Laws for the proposition that “it is possible for an extreme, unfettered passion for absolute equality of ideas, lifestyles, and actions to prove detrimental to society.” Id. at p. 825 n. 120 and accompanying text. This turns on its head the substantial scriptural condemnation of inequality as evil. New Testament, 2 Corinthians 8:14; Book of Mormon, Mosiah 27:3, 29:32; Alma 4:12-15, Alma 16:16, Alma 28:13, 3 Nephi 6:14; D&C 70:14, 78:6. For a contrary view, see Dale Carpenter, “The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic,” Cato Institute Policy Analysis No. 570, June 1, 2006, available online at ; seen August 23, 2008. Flake notes the urgent attempts a century ago to adopt a federal constitutional amendment outlawing Mormon polygamy.


191 James B. Allen, “The American Presidency and the Mormons” (Oct. 1972) Ensign 47; hereafter Allen, “Presidency.” Allen was the Assistant Church Historian when he published the article. The Ensign is one of the official publications of the church. Hence, his history has an official stamp.


192 N. Eldon Tanner, “The Administration of the Church” (Nov. 1979) Ensign 42; emphasis added. Tanner cites primarily D&C secs. 84 and 107 in support of his statement.


193 D&C 26:2, 28:13, 104:71-72, 85.


194 D&C 20:65.


195 Whatever is said and done in the general conference is official and may be taken as doctrine. Former church president Harold B. Lee, speaking at the conclusion of a general conference, said this:
“Now, you Latter-day Saints, I think you have never attended a conference where in these three days you have heard more inspired declarations on most every subject and problem about which you have been worrying. If you want to know what the Lord would have the Saints know and to have his guidance and direction for the next six months, get a copy of the proceedings of this conference, and you will have the latest word of the Lord as far as the [Latter-day] Saints are concerned. And [also] all others who are not of us, but who believe what has been said has been “’the mind of the Lord, the will of the Lord, and the voice of the Lord, and the power of God unto salvation.’” (See D&C 68:4.)”
Harold B. Lee, “Closing Remarks” (January 1974) Ensign 125; emphasis added.


196 The report, presented by the Church Auditing Department per Robert W. Cantwell, may be read online at ; seen August 30, 2005. A “sustaining vote” is not a vote in the democratic sense. Members are asked to raise their right hands “in favor” of a predetermined proposed measure and are then asked “to signify by the same sign if there are any opposed.” “Voting” is almost always unanimous in favor. Hence, the operation is a fait accompli. Faithful Mormons usually accept the infallibility of their leaders. When they speak, the “thinking has been done.” See, e.g., D&C 1:38 and 68:1-5 (which do not express exactly the same idea), plus the sources summarized at ; seen July 23, 2008. The law, of course, would never accept such a proposition.


197 The church’s 11th Article of Faith, about which more follows.


198 New Testament, Luke 14:23; emphasis added. Those who repent voluntarily are “more blessed” than those who are compelled to do so. Book of Mormon, Alma 32:13-14.


199 G. W. F. Hegel, Grundlinien der Philosophie des Rechts. The sentence can also be translated, “The march of God in the world, that is what the state is.” See partial text reproduced at M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (London: Sweet & Maxwell, 7th ed, 2001), pp. 990-91; hereafter Freeman Jurisprudence. See Roland Watson, “The State as God” which may be read online at ; seen July 7, 2005.


200 H. Wayne House, “A Tale of Two Kingdoms: Can There Be Peaceful Coexistence of Religion with the Secular State?” (1998-99) 13 BYU Journal of Public Law 203, hereafter House “Tale,” collects and analyzes the contemporary issues from a Mormon point of view.


201 A good example of the “definitional” approach is Stewart and Duncan “Betrayal” (defense of the “shared public meanings” and “core meanings” of marriage).


202 Brigham Young, Letter to Brother Farnham, July 24, 1849, quoted in J. Keith Melville, “Brigham Young on Politics and Priesthood” (1970) 10(4) Brigham Young University (BYU) Studies 488, 490.


203 See, e.g., Mark W. Cannon, “What Is the Proper Role of the Latter-day Saint with Respect to the Constitution?”, (1962) 4(2) BYU Studies 151; and Old Testament, Ezekiel 42:20, which describes the building of the temple: “He measured it by the four sides: it had a wall round about, five hundred reeds long, and five hundred broad, to make a separation between the sanctuary and the profane place. See also James Madison, A Memorial and Remonstrance, Presented to the General Assembly of the State of Virginia, at their Session in 1785, in Consequence of a Bill Brought into that Assembly for the Establishment of Religion by Law (Worcester, Mass: Isaiah Thomas, 1786) (guarantee of freedom of religion permits greatest plurality of religions); hereafter Madison, Memorial and Remonstrance. Although not one of the signers of the Declaration of Independence, Madison, like Jefferson, was one of the “founding fathers” of the United States, for whom presumably Mormon church president Wilford Woodruff performed baptism for the dead and other ordinances in the St. George, Utah, Mormon temple; ; seen June 30, 2005.


204 Federalist Papers nos. 47-51 treat this subject exhaustively.


205 Book of Mormon, Mosiah 3:19; New Testament, 1 Corinthians 2:14. See my discussion of Madison’s ideas in Robert J. Morris, “Court Bashing in the Legislature: A Modern Lesson in Civics From the ‘Federalist’” (1994) 6(6) Law Reporter: The Journal of Hawaii Trial Lawyers Association 5. See also Arthur O. Lovejoy, Reflections on Human Nature (Baltimore: Johns Hopkins Press, 1961), pp. 38-39.


206 Pearl of Great Price, Articles of Faith, Article 10. See also Thomas A. Metzger, A Cloud Across the Pacific: Essays on the Clash Between Chinese and Western Political Theories Today (Hong Kong: Chinese University Press, 2005), pp. 618, 703-705, from which the remainder of this paragraph is summarized and augmented.


207 D&C 65:6.


208 New Testament, John 12:31, 14:30, 16:11; D&C 127:11.


209 New Testament, James 1:27; D&C 59:9.


210 Book of Mormon, Alma 4:10-11.


211 D&C 112:23-26.


212 D&C 93:24.


213 Book of Mormon, Alma 32:21.


214 Book of Mormon, Ether 3:19.


215 D&C 45:66-71.


216 Book of Mormon, 2 Nephi 4:34.


217 D&C 45:69.


218 D&C 45:68.


219 Old Testament, Ezekiel 42:20.


220 New Testament, Matthew 22:21, Mark 12:17, Luke 20:25; D&C 63:26.


221 New Testament, Matthew 19:6, Mark 10:9.


222 James Madison, “Detached Memoranda,” circa 1817, in Philip B. Kurland and Ralph Lerner (eds), The Founders’ Constitution (Indianapolis: Liberty Fund and University of Chicago Press, vol 5, 1987), Amendment I (Religion), Document 64; (1946) 3 William and Mary Quarterly (3rd Series), pp. 554-60; the document is available also online at ; seen December 21, 2009; emphasis added;


223 D&C 78:14.


224 Madison, “Detached Memoranda,” ibid; emphasis added.


225 Garrett Ward Sheldon, “Religion and the Presidency of James Madison” in Gastón Espinosa, ed. Religion and the American Presidency: George Washington to George W. Bush (New York: Columbia University Press, 2009), pp. 111-48; 141, 144, 148 passim.


226 Old Testament, Deuteronomy 19:5; New Testament, Matthew 18:16, 2 Corinthians 13:1; D&C 6:28.


227 Thomas A. Metzger, A Cloud Across the Pacific: Essays on the Clash Between Chinese and Western Political Theories Today (Hong Kong: The Chinese University Press of Hong Kong, 2005), p. 11, citing and summarizing Pierre Manent, An Intellectual History of Liberalism, trans..Rebecca Balenski (Princeton: Princeton University Press, 1994).


228 Franklin Steiner, Religious Treason in the American Republic (Chicago: American Rationalist Association, 1927?), p. 4; hereafter Steiner Treason. Steiner, like Swancara, collects numerous citations and sources in support of his thesis, including Patrick Henry, Benjamin Franklin, and Stephen A. Douglas.


229 See D&C 101:77-80, for example, and the discussion below.


230 New Testament, 1 Corinthians 2:14; Book of Mormon, Mosiah 3:19, 16:15, Alma 26:19-22, 41:11, 42:7-24; D&C 20:20, 29:41, 67:12; Pearl of Great Price, Moses 5:13, 6:49. Mormonism, like Christianity generally, thus posits and essentializes a universal “human nature.” Metzger Cloud, pp. 75-78. This perforce has argued for a universal and essential definition of marriage accepted by “civilized nations” at all times and in all places—deriving, no doubt, from the story of the “marriage” of Adam and Eve—the first man and woman and the father and mother of all living. Old Testament, Genesis chs. 1-2; Pearl of Great Price, Book of Moses. John Boswell, Same-Sex Unions in Premodern Europe (New York: Villard Books, 1994), esp. ch 1 on definitions, has demonstrated the fallacy of this argument. Everything is politically constituted and depends on the local concept of “we.” The we-group decides which ideas are deemed indisputable and “eternal,” and these things are not fixed but are in constant flux, dialogue/dialectic, or “conversation.” Robert N. Bellah, Richard Madsen, William M. Sullivan, Ann Swidler, and Steven M. Tipton, Habits of the Heart: Individualism and Commitment in American Life (Berkeley: University of California Press, 1985), p. 303. Hence, in Mormon theology, fundamental ideas can be at once both “new” and “everlasting.” Morris “Law and Religion.”


231 Book of Mormon, Ether 2:12.


232 A rather biased and emotional exposition of this thesis may be seen at ; seen August 5, 2008.


233 Superior Oil Co. v. State of Mississippi, 280 U.S. 390, 395-96 (1930) (per Holmes, J).


234 Pearl of Great Price, Joseph Smith—History 1:9; D&C 19:31 (“of tenets thou shalt not talk….”).


235 Pearl of Great Price, “Articles of Faith,” Article 11. I read this as equivalent, or nearly so, on some level to the statement attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” Evelyn Beatrice Hall (pseud. Stephen G. Tallentyre), The Friends of Voltaire (np, 1906), summarizing Voltaire’s thought in these words. Freedom of worship includes freedom of speech, assembly, etc.


236 Journal of Discourses 2:92 (Brigham Young; 6 Feb. 1853); see also Journal of Discourses 3:152 (Amasa Lyman; 2 Dec. 1855) and Journal of Discourses 5:292 (Brigham Young; 4 Oct. 1857). The origins of the Creed in pre-Utah days are discussed in Richard Lloyd Anderson, Joseph Smith’s New England Heritage: Influences of Grandfathers Solomon Mack and Asael Smith (Salt Lake City: Deseret Book and Provo, Utah: BYU Press, rev. ed. 2003), pp. 131, 266 n. 176; hereafter Anderson Heritage.


237 Lectures on Faith, Lecture 1:12, 15-16. Orson Pratt was the author of the Lectures on Faith; Joseph Smith their promulgator. More on the Lectures on Faith follows infra.


238 D&C 63:59.


239 Book of Mormon, Ether 12:26-27.


240 New Testament, James 2:19.


241 New Testament, 2 Peter 1:5-9; Pearl of Great Price, Articles of Faith, Article 13.


242 Brigham Young, Letter to Nathaniel H. Felt, July 24, 1849, quoted in J. Keith Melville, “Brigham Young on Politics and Priesthood” (1970) 10(4) Brigham Young University (BYU) Studies 488, 490.


243 Russell M. Nelson, “Freedom To Do and To Be,” address given on May 27, 2004, to the International Scientific and Practical Conference, “Religious Freedom: Transition and Globalization,” at Kiev, Ukraine; emphasis added. The speech is listed officially on the church’s Web page under the heading, “Voice of the Church,” and may be read online at ; seen May 21, 2007.


244 Ibid., original emphasis.


245 Book of Mormon, 2 Nephi 26:29.


246 Book of Mormon, 1 Nephi 22:23, 2 Nephi 26:20, 4 Nephi 1:26, Mormon 8:33; D&C 10:56.


247 Book of Mormon, Alma 1:16.


248 Book of Mormon, Alma 5:53.


249 Book of Mormon, Alma 4:8.


250 Book of Mormon, Alma 60:32.


251 D&C 63:62.


252 Book of Mormon, 3 Nephi 6:15;emphasis added. The entire text of 3 Nephi 6, which condemns the seeking of political power and authority through the use of lawyers and changes in the political structure, bears careful reading in this context.


253 Book of Mormon, Alma 1:12; emphasis added.


254 D&C 84:55.


255 Book of Mormon, 3 Nephi 16:10.


256 Bruce R. McConkie, A New Witness for the Articles of Faith (Salt Lake City: Deseret Book Co., 1985), p. 670 (citing and discussing History of the Christian Church 3:138-40).


257 Brigham Young, “The Gospel—The One-Man Power” Journal of Discourses 13:268 (July 24, 1870). Additional sources are collected and discussed at www.challengemin.org/moon.html, , and at ; with rebuttal at ; all seen July 31, 2005. Joseph Smith and many other early Mormon leaders were natives of New England, many from Vermont. “Entertaining Quakers” was a controversial topic. Anderson Heritage, pp. 258-60 n. 155 and accompanying text. One of Vermont’s favorite sons was Ethan Allen, the “hero of Ticongeroga,” and leader of the “Green Mountain Boys”; , seen December 1, 2005. Allen was the author of Reason: The Only Oracle of Man/A Compendious System of Natural Religion (1784), which attacked both old and New Testaments; a copy of which may be read at http://www.deism.org/ethanallen.htm; seen December 1, 2005. For a jurisprudential comparison, see, e.g., Kenneth T. Gallagher, “Rorty's Antipodeans: An Impossible Illustration?” (1985) 45 Philosophy and Phenomenological Research 449- 455.


258 There may be a connection of this image with D&C 88:45, which states: “The earth rolls upon her wings, and the sun giveth his light by day, and the moon giveth her light by night, and the stars also give their light, as they roll upon their wings in their glory, in the midst of the power of God.”


259 New Testament, Luke 3:10, John 6:28, Acts 2:37.


260 Joseph Smith, History of the Church of Jesus Christ of Latter-day Saints, B. H. Roberts (ed) (Salt Lake City: LDS Church, vol 5, 1958), p. 286; emphasis added; hereafter Smith History of the Church.


261 D&C 20:2; Pearl of Great Price, Joseph Smith-History 1:72.


262 Smith, History, vol. 5, p. 265; see also vol. 2, p. 302 and vol. 6, p. 366. A good discussion of this and related statements and doctrines may be read online at ; seen July 21, 2005 (discussing church’s early eschewing of any doctrine of infallibility).


263 D&C 132:7.


264 Smith, History, vol. 5, p. 526.


265 Allen, “Presidency.”


266 ; seen July 21, 2008. See also relevant entries to this and other present subjects in the official online Encyclopedia of Mormonism at . D&C 98:10 requires that men who are wise, good, and honest be found to “rule” politically.


267 and the related link; seen July 21, 2008.


268 A. Theodore Tuttle, “Service Saves” (Nov. 1977) 7 Ensign 54. Tuttle was a member of the presidency of the church’s First Quorum of the Seventy.


269 D&C 84:86.


270 D&C 89:5-7.


271 D&C 68:29.


272 Hugh B. Brown, commencement address, Brigham Young University, May 31, 1968; emphasis added.


273 Because Mormons believe in “continuing revelation” from God through their “living prophets,” the four books of scripture are not the “infallible” doctrinal constitution that the Bible is in other Christian sects. The Bible is accepted only so far as it is “translated correctly.” This allows for malleability of the texts according to the whims of the present “living prophets,” and all the scriptures cited in this article, including those referring to the US constitution and the law, should be read subject to that malleability. The caveat, “so far as it is translated correctly,” is crucial in understanding the Mormon view of the Bible. Brigham Young said:
“When I first commenced to preach to the people, nearly forty years ago, to believe the Bible was the great requisite. I have heard some make the broad assertion that every word within the lids of the Bible was the word of God. I have said to them, ‘You have never read the Bible, have you?’ ‘O, yes, and I believe every word in it is the word of God.’ Well, I believe that the Bible contains the word of God, and the words of good men and the words of bad men; the words of good angels and the words of bad angels and words of the devil; and also the words uttered by the ass when he rebuked the prophet in his madness. I believe the words of the Bible are just what they are; but aside from that I believe the doctrines concerning salvation contained in that book are true, and that their observance will elevate any people, nation or family that dwells on the face of the earth.”

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