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I should note that Justin posted some thoughts on the book a couple of weeks ago and received several interesting comments.

This is an interesting subject to me. Some time ago, I sent a letter to the editor of the Salt Lake Tribune, in response to a lot of complaints that Utah was controlled by the LDS Church, asking "What do you want from us?"

One response that was published was that we should withhold support for restrictions on alcohol. Of course, that suggests that LDS people should restrict their right to vote for the kind of society they wish to live in. I think that's a fundamental part of democracy which has become overshadowed by our general focus on the rights of minorities.

We seem to have a fetish for the Bill of Rights, allowing it to overshadow many of the most basic parts of the Constitution such as those mentioned in the Preamble.

One of the most common complaints in Utah is the claim that the influence of the LDS church violates the First Amendment. The problem is that this is basically an argument for denying the right of the people to vote their own consciences. The church does not endorse parties or candidates, but it does take positions on various issues. I think it is the function of a church to give guidance on the moral implications of societal issues. To paraphrase Joseph Smith, it should teach correct priniciples and then leave it to the people to govern themselves.

The problem for the complainers is that what they really want is for LDS people to keep their collective mouths shut and let people like Rocky Anderson run the state, but that would REALLY violate the First Amendment.

Query: If it is unconstitutional for the government to be influenced by the religious beliefs of the people, why isn't it also unconstitutional for it to be as influenced by atheists as it is these days? Haven't the courts, in the name of tolerance, adopted a policy of intolerance for all religious opinions?

I'll look forward to your review, Dave.

My post quoted a description of the book on the Signature website:

"The consensus is that Utah is a theocracy. From there, opinions diverge as to whether, for instance, the religious influence in Utah indicates a healthy regional democracy (the Founding Fathers' intent) or whether, especially for those not of the dominant church, Utah presents (1) minor inconveniences compared to colonial America, when Puritans were regularly beheading Quakers or (2) an intolerable, oppressive climate—exactly what the Constitution intended to prohibit. In this volume, some of the most respected legal, historical, philosophical, and theological minds in Utah approach these questions from various perspectives."

Does the book itself contain this passage--particularly the first line above?

Justin, I think the term "theocracy" is calculated to get people riled up. The real debate revolves around the proper formal or informal role a dominant church should or shouldn't be allowed to play. IMHO, there are few defenders of any formal role for the LDS or any other church in politics, but an unavoidable informal role or influence for a dominant church. Trying to describe and critique that "informal role" is a tricky affair, which I'll try and flesh out as discussed in the essays included in the book.

In my recent notes on The Mormon Experience, I noted how quickly epic Mormon history died after 1890. I think politics is a good alternate focus for 20th- and 21st-century Mormonism, very true for the 1890-1910 period, then quieter, but suddenly becoming once again a key aspect of Mormonism's public activity.

Zimmerman is a partner in my firm. He is a great guy.

If many like-minded people all live in the same area, it is only logical that the politics and policies of the area will reflect commonly-held values. There is nothing wrong with this. Calling the situation a theocracy or saying that being a non-member makes you an outsider or a marginalized individual is, in the case of the former, inaccurate, and in the case of the latter, merely a non-controversial ovbservation that shouldn't convey the inherent judgment that it does because of the political state of our society. If the majority of people in an area were all atheists such that politics and policies reflected such atheism, would that even be an issue? Would that be called a theocracy and then psychoanalyzed ad nauseum? I suspect that, at least in the eyes of liberals, if an area were populated by people who were predominantly atheist such that this belief was reflected in the legislation and political life of the area, it would not be called a theocracy and the constitutionality of such an effect would not be questioned in the slightest by the same people who question whether Utah runs afoul of the Establishment Clause merely because the people living there actually vote their values.

I have a huge beef with this, as you can tell. Although the complete institutional separation of church and state is possible and is effected by both the Utah state constitution and the federal constitution, a forced social separtion of church and state is neither possible nor desirable. People's religious beliefs are part of who they are. They factor subconciously into anything that they do or say; this is also true of legislation. There is no basis or reason to say that a person needs to cleanse their psyche of all religious traces before entering the legislative arena. And if a majority of people happen to share similar religious beliefs such that a majority of people in the legislature, who have been democratically elected to be there, also share those beliefs, and recognizable tenets of those beliefs surface periodically in pieces of legislation, then that is perfectly justifiable particularly where the state and federal constitutions provide a Bill of Rights to guard against any majority tyranny that would affect truly fundamental rights (I'm not talking about rights that are part of a "liberal" social agenda here but lowest common denominator rights that are written into the Bill of Rights). Homogeneity is neither necessarily bad nor oppressive.

I will read this book with interest but, unfortunately, I will confess that I am suspicious from the outset of an attempt to smuggle criticisms of Utah's majority beliefs into a supposedly objective and complimentary collection of essays (especially when Signature invokes the word "theocracy" in its plug for the book, a word with no possible positive connotations in 2005).

AST: I understand your point that it's not fair, or even feasible, to have a kind of say in the world they live in. But from my experience in Utah, the non-Mormons who complained about alcohol laws didn't view it in terms of democracy. And in fact, it may not be. I don't think we can accurately say whether a majority of MORMONS in Utah agree with the liquor laws.

The point that the alcohol-regulations opponents are trying to get across is that these regulatory decisions are heavily influenced by a small group of LDS leadership (whether they represent an LDS majority or not), and that it seems to be done in a kind of closed-door setting.

In other words, the alcohol complainers may still complain if every alcohol regulatory decision was based on a vote, but then they would be wrong. The way things stand now, though, they make a good point that a small minority who don't even drink alcohol are trying to regulate/impose on their lifestyle.

So, John, using your logic, whatever the majority says goes. It would seem that that justifies the persecution of the Saints in Missouri and Nauvoo (to an extent). Perhaps that's taking it too far, but wouldn't it justify teaching a morality inconsistent with LDS beliefs in schools where the majority are of a liberal bend (like Heather Has Two Mommies in San Fran)? By the way, I think saying that 'theocracy' has NO positive connotation is a little strong. Granted, the fact that it's used in a book coming from Signature about the LDS chruch probably justifies your comment

So, John, using your logic, whatever the majority says goes.

Nope. Go reread my comment.

Just to clarify, a good working definition of "theocracy" is if the civil or political leaders are also the religious leaders. That was actually the case in Utah from 1847 to 1857, at first because there was no established civil government, later because Brigham Young was appointed as the first territorial governor.

However, "theocracy" is generally a pejorative term in contemporary discourse. The essays in the book generally avoid the term "theocracy," and instead discuss the issue in terms of "establishment," that is to what extent the LDS Church in Utah does or does not have influence over social issues and politics, whether and how it exercises that influence, and what effect (if any) such influence really has. A Church endorsement can cut both ways, you know.

I assumed that the theocracy line was a throwaway by the Signature publicist to (1) rile up Mormons in order to generate interest in the book; and, (2) just to rile up Mormons. (Note: in a recent press releast, the Signature publicist recently described the Church as being more or less equivalent to the Taliban so there is a certain amount of bomb throwing going on over there. My sense, however, is that this is one or two Signature employees and certainly not generalizable to all authors published with Signature.) Frankly, I think that the term "theocracy" ends up being so charged that it has very little descriptive value. It is more useful to describe actual practices and institutions.

Dave, one point I was trying to make is that if a body of legislators are either subconciously or consciously infusing their religious values, which show up as social values, into policies and laws, then that does not run afoul of the establishment clause. Period. Can non-members in Utah really expect members not to vote their values? When members vote their values, Church members get sent to the legislature. There is no conceivable way in which these legislatures can wipe their identity as Latter-day Saints out of their thoughts and values. Nor should they be expected to do so. Atheists are not expected to wipe their minds and legislation clean of any wiff of atheism when legislating. It is simply part of who they are. Similarly, for religious people, religious principles and values are simply part of who they are. These values will naturally surface in their legislation, if they make up a majority in a given area. This is not wrong. We have the Bill of Rights to ensure that such consensus doesn't end up violating rights. Thus, APJ's comparison with the Latter-day Saint experience in Missouri, where political majoritarianism resulted in horrible abuses of my own ancestors is completely inapposite. The Bill of Rights was not incorporated as against the states at that time, but much of it is now, so the Utah legislature, even if it is largely LDS, cannot produce the same result as the evangelical Christians in nineteenth-century Missouri.

John F, I find myself agreeing completely with your comments. While there are sometimes popular complaints that equate voting choices or private opinion rooted in religious belief as improper, such opinions are simply thinly veiled special pleading. Every voter makes choices based on their values or opinions or beliefs. That's not establishment.

The interesting debate is whether there is any improper institutional pressure or influence going on, and what is the proper (versus improper) role a dominant religion can or should play in the region where it is dominant. In other words, there can very well be a positive as well as a negative side to informal or de facto establishment, and that possibility doesn't get much public discussion. It deserves some.

That is an interesting question. It seems like the Church only even distantly approaches this possibility of establishment infringement when it (infrequently) makes a public statement that is relevant to some political debate of the day. For example, in the fall when the Church said that it supports an amendment to protect traditional families. That could perhaps run afoul of establishment clause doctrines if some kind of direct influence is shown. Actually, though, I think it would have to be more than just some direct influence, because one could argue that the Church has direct influence merely because of the way that LDS legislators, like any other legislators regardless of their beliefs, vote according to their values and what they perceive to be the values of their constituencies. Rather, the influence would have to be shown to be a guiding influence, where the Church is literally directing legislation, perhaps by writing a bill itself and then submitting it to the legislature for a rubber stamp.

John: Establishment clause jurisprudence is such a total mess that it is difficult to state exactly what it means, but I seriously doubt that the activity that you describe as "close to the line" is anywhere near the line.

First, Churches have a free speech right to express themselves on matters of political concern. I am unaware of any cases that could be read the Establishment Clause imposing content-based political speech restrictions on religious speakers.

Second, Churches write legislation all the time. Or at anyrate consortiums of churches and their lawyers and lobbyists do this. What do you think RILUPA or RFRA were? What do you think dry laws in the South are? (By the way, Utah's liquor laws are no where near as strict as those found in many counties in the Bible Belt.)

As a general matter, the courts have been extremely hesitant to strike down a law based on the motives or identity of its authors or supporters. The only possible counter example I can think of are cases suggesting that neutral laws that have a racially disparate effect may violate equal protection if one can show that racial animus motivated the law. Of the current justices, Stevens is the only one who has taken the position that religiously motivated laws (an anti-abortion statute as I recall) violate the establishment clause, and even he went through the motions of attempting to find identifiable religious content in the law itself. No other justice (at least no other sitting justice), to my knowledge, has been willing to go down this road.

Nate, I agree with you because viewing the fact that the Church is big here, and drawing the conclusion from that that there might be an Establishment Clause issue really gets the whole thing backwards. Establishment means that the State privileges a chosen religion above others. That simply is not the case in Utah. The Utah constitution is very conscientious about the separation of church and state. And, of course, the US Constitution guarantees all those "outsiders" in SLC that Utah has not established a church in this legal and political sense.

I was just looking for some plausible basis for an investigation of this nature. I am with you in finding that it really is tenuous.

John F., maybe I overstated your position somewhat, but even after re-reading your comment, it would still seem to justify teaching somewhat 'alternative' moralities in the classroom, or any number of other things that Mormons could very well object to (which was really the point I was trying to make).

it would still seem to justify teaching somewhat 'alternative' moralities in the classroom

I don't know what you mean by this. You certainly did misread if you thought my comment in anyway dealt with whether teaching alternative moralities in the classroom was justified or not.

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