Wall, or Curtain, of Separation Between Church and State? A Conversation Regarding Elder Dallin H. Oaks’s Proposal
By Ken K. Gourdin
Last September, Elder Dallin H. Oaks of the Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints (and who was formerly a U.S. Supreme Court law clerk, a law professor at the University of Chicago, and a justice on the Utah Supreme Court) gave an address at the Court and Clergy Conference in Sacramento, Calif., in which he advocated a different form of separation between church and state than the classical “wall of separation” advocated by Thomas Jefferson, saying that, instead, a curtain of separation should exist between them. See here for the full text of Elder Oaks’s remarks (this and all other links last accessed August 17, 2016):
Scott Lloyd, a journalist at Salt Lake City’s Deseret News, began a thread at Mormon Dialogue and Discussion regarding Elder Oaks’s remarks to which I contributed extensively. At the time, the refusal of Rowan County Kentucky Clerk Kim Davis to issue marriage licenses to gay and lesbian couples, in contravention of the U.S. Supreme Court decision in Obergefell v. Hodges, was much in the news, and while he did not mention Ms. Davis by name, Elder Oaks explained why Ms. Davis’s approach would not work. In response to another poster who equated Ms. Davis’s actions with those of the Reverend Dr. Martin Luther King, Jr., I replied (bold and italics in original):
No, actually, she [Kim Davis] didn’t do “exatly” what Dr. King did. Dr. King advocated civil disobedience, which involves breaking a law one sees as unjust while also accepting the consequences of that choice. Kim Davis wants to have her cake and eat it, too, by breaking the law and not being subject to any of the consequences of that choice.
In response to the tendency to elevate Thomas Jefferson’s metaphor to the status of a bedrock constitutional principle and to assume that the U.S. Supreme Court is always right, I wrote:
His flaws notwithstanding (he was human, and he had them, as we all do), I respect and revere Thomas Jefferson, along with his positions on many things. He certainly had the right to contribute to the public discourse and dialogue on the issues of his day, just as his contemporaries did in their day and just as you and I do in our day. Many of those contributions were (and are) sage and apt. But I find the tendency to elevate his take on particular issues to the status of a Constitutional bedrock principle problematic. If one were to conduct a “Person-on-the-Street” poll and were to ask ten passersby where the principle of separation of church and state comes from, eight or nine of those passersby would probably say it comes from the Constitution. And they, of course, would be wrong. Conversely, if one were to ask where the principle of freedom of religious exercise comes from, a majority of them probably wouldn’t be able to say.
Similarly, the United States Supreme Court is, to me, a fascinating institution. Certainly, all of the people who serve on it are well qualified in terms of education, academic credentials, and professional experience. But if one were to go to an elite enough gathering of legal professionals, one wouldn’t be able to swing a dead raccoon by the tail without hitting at least one other person who meets those criteria. Thus, education, credentials, and experience are only part of the equation (and they’re a relatively small part of the equation, at that). Few might be willing to admit this, but politics, timing, and sheer, dumb luck also play more than miniscule roles in the process. Indeed, they probably play a larger role than most people realize.
Bottom line? As much as I respect the rule of law, the Justices’ education, credentials, and experience notwithstanding, there’s nothing that makes the Nine Wise Souls on the United States Supreme Court uniquely qualified to grapple with the questions they grapple with or to reach the conclusions they do with respect to those questions. Scores, hundreds, thousands, and even hundreds of thousands of people have similar qualifications, yet they, as intelligent people capable of high reasoning and good will, in good conscience and in good faith, reach conclusions different than those reached by a majority of the Justices all the time. As someone else so aptly put it, when it comes to the issues upon which they render their opinions, a majority of Justices isn’t last because it’s right: it’s right because it’s last. Period.
In response to another poster who wrote, “Thomas Jefferson didn’t use the term ‘curtain,’” I replied, “And the Constitution doesn’t use the term wall. There! Now we’re even!” This poster then responded, “I agree. The term ‘wall’ was in Jefferson’s speech to a Baptist church explaining why their freedom of religion mattered.” Whereupon Scott Lloyd replied, “So ‘wall’ is no more sacrosanct than ‘curtain.’ Unless you believe it has some special status merely because Jefferson used it.” And Mr. Jefferson actually used the term in a letter to Danbury Baptist Church rather than in an address.
Later, I wrote:
I think it’s important to understand the context in which Mr. Jefferson first invoked the metaphor of a wall of separation between church and state. He wasn’t writing a treatise on constitutional interpretation when he used it, so it may be a mistake to apply it to that end. I don’t think the author of the piece I link below, for instance, has a dog in the fight: I don’t think he’s arguing (at least, not on his own behalf) for any particular interpretation of Mr. Jefferson’s phrase. The piece is somewhat lengthy, so for those of you who would like me to “cut to the chase,” here is the author’s conclusion in a “money quote”:
“Analyzed with the help of the latest technology, the Danbury Baptist letter has yielded significant new information. Using it to fix the intent of constitutional documents is limited, however, by well established rules of statutory construction: the meaning of a document cannot be determined by what a drafter deleted or by what he did concurrently with the drafting of a document. But it will be of considerable interest in assessing the credibility of the Danbury Baptist letter as a tool of constitutional interpretation to know, as we now do, that it was written as a partisan counterpunch, aimed by Jefferson below the belt at enemies who were tormenting him more than a decade after the First Amendment was composed.”
Lest I be deemed guilty of the same offense against which I now caution my reader, here is a link to the entire piece:
In response to another poster who asked Scott Lloyd, “Are you really suggesting that Elder Oaks has a better handle on the meaning of the first amendment than did Jefferson? That’s just silly,” I responded: “Yeah. [Ironic laugh.] Especially since, great as Thomas Jefferson was, he was never a prophet, seer, and revelator.” I responded more extensively to this poster thus:
I’ll let Scott speak for himself, but I don’t think he’s suggesting that Elder Oaks “has a better handle on the meaning of the [F]irst [A]mendment than did Jefferson.” That’s the whole point. Jefferson’s letter to Danbury Baptist Church wasn’t written as a primer on constitutional interpretation generally or on First Amendment interpretation specifically. To appeal to it as an authority on constitutional interpretation is to press it into service for a purpose for which it was never intended. He wrote it as a rejoinder to those who questioned his religiosity. In any event, as I have already pointed out, as venerable as he and his opinions were and are, Jefferson never could have envisioned many of the ways in which interpretation of the First Amendment has changed over the years, often for the better.
For instance, Jefferson’s conception of First Amendment freedom of speech very likely did not even contemplate (let alone not embracing) such a principle as expressive conduct. Yet that principle has been enshrined in First Amendment jurisprudence for generations, and the United States, its laws, and its citizens and residents are all the better for it. So called “originalists” and “textualists” often are excoriated by allegedly-more-enlightened progressive types, who dismiss them (us; largely, I’m an originalist, or at least, I think that the Founders opinions on many things are deserving of far more consideration and far more deference than they often get) by leveling the accusation that, e.g., they/we want to return to a time when someone of another color was considered 3/5ths of a person for political purposes. The truth is that many of those critics want to “have their cake and eat it, too”: they appeal to Jefferson’s “wall of separation” metaphor to support removing every trace of religion from public life, yet, at the same time, they poison the well against originalist/textualist arguments by saying that their proponents want to return to a time when people of another color were considered less than fully human.
In response to this poster’s assertion that, “Yes, the phrase [wall of separation between church and state] doesn’t exist in the Constitution. Only morons don’t know that,” I responded:
Humbly, then, those of us who think what the Constitution does and does not say is of much greater importance than that which you attach to it must beg your pardon. So, too, with the level of civic literacy among the American electorate. While I don’t wish to be unduly critical of my fellow citizens, the level of civic illiteracy among the American electorate is startling and disheartening. One cannot effectively exercise rights which one is scarcely aware he has, and one is far more likely to be far more sanguine about infringement of those rights if one cannot even articulate them (and where they come from) than he would be if he were more knowledgeable. While, again, I don’t wish to be unduly critical of my fellow citizens, on the subject of civic literacy, far more people are “morons” about what rights they possess, about the meaning of those rights, and about the proper role of government vis-a-vis those rights than you wish to admit.
If an apologist or a critic, were to take a particular quote reportedly uttered or written by someone, were to divorce that quote from its context, and were to attempt to employ that quote in the service of some end never even remotely contemplated by the writer or the speaker in an attempt to defend or to criticize the Church of Jesus Christ of Latter-day Saints, people on the opposing side of the debate would be quick to excoriate such a person’s tactics. Yet, arguably, as the author of the article from the Library of Congress to which I linked earlier in the thread points out, that is precisely what those who employ Jefferson’s quote in support of removing religion from public life are doing.
Dismiss that conclusion if you will, but you do so at your own peril.
In response to another poster’s invitation:
Please tell us when Jesus, Joseph Smith, or Elder Oaks told us to defend the right of business owners to discriminate because of their religion? Please tell us when they told us to be worried about BYU’s accreditation [referring to Brigham Young University, which is owned and operated by the Church of Jesus Christ of Latter-day Saints and which is supported by donations from Church members]? Just tell me where does it say to defend the politics of religious freedom?
Joseph Smith was a prophet, seer, and revelator in his day, and Elder Dallin H. Oaks is a prophet, seer, and revelator in his day. That’s the whole point of continuing revelation: it’s tailored to the needs and concerns of its recipients and the times in which they, respectively, live. And you seriously don’t think the Brethren, as Trustees of Brigham Young University, or that the members of the Church of Jesus Christ of Latter-day Saints, whose tithing dollars support BYU, should be concerned about its accreditation? All I can say to that is, “Oh. Okay.” And any of the parties you mention endorsing discrimination is a red herring. It’s as though you and anyone of your ilk think that the only people qualified to opine on religious freedom are the irreligious or the areligious.
In response to another poster’s accusation that, “Oh, come on. Elder Oaks essentially said every public servant MUST support “what God has declared immoral” or quit their job” (Allcaps in original), I responded:
Like every other citizen or resident of the United States, public servants are entitled to think, to write, to speak, and to act as they wish in private and in other arenas of the public square. However, they must follow the law as the U.S. Supreme Court has interpreted it when performing their duties as public officials. Are you going to quibble with Joseph Smith, too, who wrote that “[w]e believe in being subject to kings, presidents, rulers, and magistrates, and in obeying, honoring, and sustaining the law” [see Article of Faith 1:12 of the Church of Jesus Christ of Latter-day Saints]? Are you going to quibble with Jesus Christ, who instructed His followers to “render unto Caesar that which is Caesar’s, and unto God that which is God’s” [see Matthew 22:21 and Mark 12:17, KJV]?
That same poster wrote that as members of the Church of Jesus Christ of Latter-day Saints, “We believe in sustaining the Constitution, not sustaining those who try to destroy it. Arguments like yours run contrary to the elders of Israel stepping forth to save the Constitution.” The poster is referring to a statement attributed to Joseph Smith that the Constitution would “hang by a thread” and that the elders of Israel (that is, priesthood holders in the Church of Jesus Christ of Latter-day Saints) would step forward to save it. Presumably, because Elder Oaks did not endorse Kim Davis’s so-called “civil disobedience,” the poster includes Elder Oaks in those who “try to destroy [the Constitution].” I should have asked him just who he thinks Elder Oaks is, if he’s not an “elder of Israel.” Regarding Joseph Smith’s statement, see here (scroll down to the last question and answer on the page): https://www.lds.org/ensign/1976/06/i-have-a-question?lang=eng.
Right. Poison the well by questioning your rhetorical opponent’s motivations, then haughtily assure the world that (well poisoning notwithstanding) you’ve claimed the rhetorical high ground by cheerfully proclaiming, “But, we can agree to disagree!” Please! That’s poor form, [screen name redacted]. “Respectful” dialogue doesn’t work that way. It’s not up to me, but if it were, I wouldn’t allow that sort of thing to go on in this thread, in this forum, or on this board. Normally, I’m not one to play faith-based or intellect-based “trump cards,” but you need to change your perspective from that high horse you’re riding, so perhaps I can help you do that.
I have been a member of the Church of Jesus Christ of Latter-day Saints for my entire life (that is to say, nearly 30 years longer than you have), and I have roots in the Church that go back even further than that: indeed, they go all the way back to the Restoration on one side of my family. Additionally, I have sufficient education and other credentials that I daresay I’ve probably forgotten more about constitutional law, constitutional theory, and the proper role of government and of the judiciary than you will ever know. I’ve certainly done more than simply casually peruse a few right-wing Web sites or read a few popular books on those subjects (many of which suffer from more than a mild case of misinformation) for ersatz or quasi-Constitutional talking points. Whatever our disagreements, I would be exceedingly wary of presuming to say who does and who does not respect the Constitution, and why.
What, exactly, are you proposing that we do? “Uphold the Constitution” by assassinating a few U.S. Supreme Court justices? By importuning our senators to impeach a few of them (and if so, what “high crimes and misdemeanors” have they committed, other than reaching a decision with which many disagree)? Go the Kim Davis route and simply stop obeying laws with which we disagree? Where, exactly, would any of those courses, if pursued, lead? For someone who crows so loudly about his respect for the Constitution and for law (along with, apparently, an alleged corresponding lack of respect for them among anyone with whom he disagrees), you seem to be inching ever closer to skating on the thin, perilous, edge of anarchy’s ice (a position hardly consistent with respect for law).
As should be abundantly clear to you if you’ve paid any attention at all to my other contributions on this thread and have at least minimal reading comprehension skills, I don’t agree with the majority’s opinion in Obergefell v. Hodges. But like it or not, the only way to change it would be to enact legislation countering its effect (an unlikely prospect, given that President Obama would not sign such legislation even if it were to pass both houses of Congress), or to support Presidential and Senatorial candidates who are likely to nominate and to confirm, respectively, Supreme Court nominees whose vision of the Constitution more closely matches our own.
Later, I added, “And [screen name redacted], your ‘espect’ for the Constitution seems awfully selective. Why is it that you don’t seem to have as much respect for Article III [the article governing the judiciary] as you do for the First Amendment?” I got no response to this question. He did, however, assure me that he was not advocating assassinating or impeaching any Supreme Court justices, but he was not more specific about what he does advocate as a solution to the problem. I further responded:
I think Elder Oaks’s grasp of these issues is much, much better than yours. Even if I didn’t think that, he’s a prophet, seer, and revelator whom I have covenanted to sustain while you are not, so I will continue to disagree with you. (For the record, while I do sustain him, I do differ with Elder Oaks on at least one relatively minor issue relative to the Constitution vis-a-vis gay marriage: I’m not nearly as sanguine as he apparently is that the Obergefell majority’s magnanimous granting of privileges to people of faith to continue to “believe” and to “teach” as they wish with respect to gay marriage offers sufficient protection of free exercise, and I believe that many of those who agree with the majority in Obergefell will, rather than being content with their victory in this case, continue and intensify their efforts to marginalize religions and their adherents.
And I seriously doubt that Elder Oaks hasn’t consulted with his brethren in the Quorum of the Twelve (particularly the “law contingent,” composed of him and Elders Christofferson and Cook) about participating in events such as the one where these remarks were delivered, and about what he should say in essentially representing the Church of Jesus Christ of Latter-day Saints in such a forum. Elder Oaks’ keen legal mind trumps your comparatively ill-informed bloviating on these issues, and those of the three of them … Elders Oaks, Christofferson, and Cook, respectively … certainly do.
Further, I sense you got your widdo feewings hurt when I played the Church experience and legal education cards, respectively. I can tell you how to avoid that in the future. Ready? Here is the secret: While you’re welcome to disagree with their conclusions, don’t question the faithfulness of your interlocutors whose interpretation of the Constitution happens to differ from your own, especially when such arguments run counter to the teachings of a member of the Quorum of the Twelve (and especially when at least two other members of the Twelve likely agree with him).
I’m certainly glad to know that you don’t support assassinating or (except in rare cases) impeaching U.S. Supreme Court justices, but, failing those two options, voting for presidential and senatorial candidates whose constitutional visions more closely match our own (and who will, thus, choose and confirm nominees, respectively of whom that may also be said is our only option). Again, you, me, Kim Davis, Elder Oaks …everybody is free to believe as he or she wishes and to advocate for those beliefs in virtually every other forum in which he or she is not acting as a public official. The only thing he or she is not free to do is to enforce a private interpretation of the law which is contrary to that which a majority of U.S. Supreme Court justices has handed down. And Kim Davis is certainly free to practice civil disobedience, which involves openly defying a law which one believes to be immoral, while thereafter willingly submitting to the consequences of that choice. Kim Davis apparently wants to claim civil disobedience while doing only the first of those two things.
I note your conspicuous silence in response to my query about why you seem to favor certain constitutional provisions (the First Amendment) over others (Article III). And if you’re not suggesting assassination or impeachment, on the one hand, but you’re not content simply to work to swing the legal and political pendulum in a direction you (we; and I should emphasize that: as I said, I disagree with the Obergefell majority) do favor by supporting like-minded presidential and senatorial candidates, what, exactly, are you proposing be done?
I received no substantive answer. Indeed, my erstwhile interlocutor accused me of substance-free bombast and placed me on “Ignore” status after that, so he would not even see my posts (much less have any opportunity to respond). Another poster called me out for my searing indictment of this poster, and I responded:
You’re certainly entitled to your opinion. I do not take kindly to [his] setting himself up (against the rest of us is one thing, but against Elder Oaks, who seems virtually uniquely qualified to opine on the potential impact of constitutional questions with respect to religious exercise, not to mention being one of the Lord’s prophets, seers, and revelators??? ) as A Brave, Virtually-Lone Defender of the Constitution, of Truth, of Justice, and of The American Way, whilst those of us who disagree with him (including Elder Oaks??!!! ) are poor, benighted, wayward souls who are left to wallow in our comparative ignorance, and who, alas, don’t share nearly [his] deep, abiding love for the U.S. Constitution …