Davis v. Beason
Gene Garman
ggarman at sunnetworks.net
Mon Aug 8 12:41:52 PDT 2005
No doubt any religion test oath is impermissible under the Constitution,
and no Court or public official has a constitutional right to administer
any oath which includes religion in any way whatsoever. Opinion is
beyond the authority of government.
It is in the context of the opinion of the Davis Court in respect to
understanding the reach of the Exercise Clause that I make my point. The
Exercise Clause does not forbid regulation of actions in conflict with
the laws of society.
Gene Garman, M.Div.
Douglas Laycock wrote:
>If you read the required oath in Davis, it is entirely about belief and
>membership, not about behavior. And it includes not just belief in
>polygamy, but belief in celestial marriage. Those beliefs may have had
>some relationship, but they are clearly distinct, and the government had
>absolutely no interest in banning the theology of celestial marriage.
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX 78705
> 512-232-1341 (phone)
> 512-471-6988 (fax)
>
>-----Original Message-----
>From: religionlaw-bounces at lists.ucla.edu
>[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of John Fee
>Sent: Monday, August 08, 2005 1:20 PM
>To: religionlaw at lists.ucla.edu
>Subject: Re: Davis v. Beason
>
>I wish to respond to Mr. Garmon's argument that Davis v. Beason was
>correctly decided.
>
>I am not convinced that the law upheld in Davis v. Beason (which was
>applied to disenfranchise Mormons in Idaho) was religiously neutral.
>Although the law on its face did not mention religion, if the Free
>Exercise Clause allows inquiry into legislative purpose (as in Lukumi
>Babalu Aye v. Hialeah) or selective enforcement, I believe that the
>social context would reveal that the law was only designed to
>disenfranchise members of the LDS Church, and was only ever applied
>toward that end.
>
>But even if we accept that the law was religiously neutral, there is a
>more serious problem with the Idaho voting requirement upheld in Davis
>v. Beason based on both the Free Speech Clause and the Free Exercise
>Clause. Can it really be constitutional to disenfranchise someone just
>because they are a member of an organization that teaches a practice
>that is illegal? If the NAACP condones civil disobedience in some
>circumstances, would it be constitutional to disenfranchise all of its
>members * regardless of whether they even agree with the organization's
>position on civil disobedience? I hope not.
>
>Modern free speech law (since at least Brandenburg v. Ohio) would not
>allow punishing even the person who advocates illegal polygamy or civil
>disobedience as a general proposition. But even if one does not agree
>with Brandenburg, it is quite another thing (and well beyond even the
>authority of pre-Brandenburg incitement cases) to punish members of an
>organization because the organization's leadership advocates something
>illegal. The chilling effect of such a law on legitimate speech and
>association is obvious. And, to the extent that such laws are applied
>against religious organizations, I believe they also unconstitutionally
>punish the freedom of religious association * whether of not one agrees
>with Reynolds v. United States and Employment Div. v. Smith. On this
>score, I think Davis v. Beason is an abomination.
>
>John Fee
>Associate Professor
>BYU Law School
>
>
>
>
>
>>>>ggarman at sunnetworks.net 08/07/05 2:27 PM >>>
>>>>
>>>>
>. . .
>
>As for Davis v. Beason, no doubt this case too has relevance to
>understanding the constitutional role of religion in America, in terms
>of exercise not being above the law (which conclusion is consistent, as
>in Reynolds v. U.S., with the wording of the Free Exercise Clause).
>Nevertheless, Davis v. Beason was not about a "religious test oath." It
>was about voter qualifications, and Idaho banned voting rights to
>members of "any order, organization, or association which teaches ...
>the crime of bigamy, polygamy, or any other crime defined by law" (133
>U.S. at 347). It was about "any order, organization, or association,"
>regardless of religion. Religion organizations are simply not exempt
>from the law. Am I correct?
>
>Thank you for the challenge.
>
>Gene Garman, M.Div.
>America's Real Religion
>www.americasrealreligion.org
>
>
>
>Douglas Laycock wrote:
>
>
>
>>Mr. Garman, of course there are people on this list who disagree with
>>separation. But there are also people who agree with you on some or
>>all issues who feel more embarrassed than supported by the
>>stick-figure simplicity of thinking all answers can be unambiguously
>>derived from a few proof texts if you just repeat them enough times.
>>I agree that government should not endorse any belief about religion,
>>and that that is the best interpretation of the Establishment Clause
>>in light of founding principle and national experience. But I also
>>recognize that government routinely endorsed religion at the time of
>>the founding, and the practice did not stop after ratification of the
>>Establishment Clause. History is messy and complicated, not simple.
>>
>>Davis v. Beason upheld a religious test oath. The oath did not just
>>prevent polygamists from voting; it prevented any Mormon from voting.
>>You claim to rely on literal text and yet you endorse Davis v.
>>Beason. That is inconsistent.
>>
>>You claim to want complete separation, yet you want government to tax
>>and regulate religious practices under cases like Reynolds and Smith.
>>That too is inconsistent. There is far more contact and entanglement
>>when government regulates religion than when government leaves
>>religion alone.
>>
>>
>>
>>Douglas Laycock
>>University of Texas Law School
>>727 E. Dean Keeton St.
>>Austin, TX 78705
>> 512-232-1341 (phone)
>> 512-471-6988 (fax)
>>
>>
>>----------------------------------------------------------------------
>>--
>>From: religionlaw-bounces at lists.ucla.edu
>>[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gene Garman
>>Sent: Saturday, August 06, 2005 4:11 PM
>>To: Law & Religion issues for Law Academics
>>Subject: Re: What causes more religious strife: Government bodies
>>posting theTen Commandments, or courts ordering their removal?
>>
>>Volokh, Eugene wrote:
>> Mr. Garman: Here's a tip -- when someone disagrees with you,
>>especially someone who has been working in a field for ten years, it's
>>
>>
>
>
>
>>usually *not* because he has difficulty understanding. Rather, it's
>>because he understands things but draws different implications from
>>them than you do.
>>
>>
>>Mr. Volokh,
>>
>>As for years, I have been involved in study of the issue of religion
>>and government ever since majoring, over forty years ago, in religion
>>and history at Baylor University, which has an institute of church and
>>
>>
>
>
>
>>state. I make no claim to being a Leo Pfeffer or a Leonard W. Levy,
>>but I have read their work and I am a graduate of a Baptist
>>theological seminary, well versed in the issue of religion and
>>government, including the history connecting the two, which is why I
>>easily refuted and rebutted Justice William
>>Haven't-done-sufficient-research Rehnquist's 1985 dissent in Wallace
>>v. Jaffree:
>>
>>Read Gene Garman's essay in the May/Jun 1999 issue of Liberty
>>magazine. It documents Justice William H. Rehnquist's abuse of the
>>Establishment Clause and its history. Click on the following url:
>>http://www.libertymagazine.org/article/articleview/162/1/41
>>
>>I also spent enough time in law school to know that American history
>>is probably not taught in any law school. What I see in some of the
>>responses on your religionlaw listserve is a significant lack of
>>appreciation for the role religion history played in the development
>>of the constitutional principle adopted in the Constitution. The
>>wording of Art. 6., Sec. 3., and of the First Amendment did not just
>>jump out of the air into the minds of the Founding Fathers and of the
>>distinguished six members of the joint Senate-House conference
>>committee which drafted the final version of First Amendment.
>>
>>The wording of the religion commandments of the Constitution is
>>specific and grammatically significant, the result of years of
>>experience and debate in the colonies, original states, and the First
>>Congress. Did everyone agree? No, but the result was the specific
>>expressed conclusion and opinion of the majority of those in the
>>middle of the issue. Did every Congressman agree with President
>>Madison's veto of two 1811 religion bills passed by Congress? No, but
>>the majority sustained Madison.
>>
>>To suggest that facts of history do not have relevance to an
>>understanding of the meaning and application of the religion
>>commandments is silly. For you and others to dismiss the value of
>>"separation between Religion and Government" (James Madison), as if it
>>
>>
>
>
>
>>were not a part of the basic discussion or of the constitutional
>>solution, does not impress me that you want to know as much about the
>>matter as you and they profess, because you have already made up your
>>mind. And, I am not convinced, for examples, that you have read every
>>thing deists and primary sources James Madison and Thomas Jefferson
>>wrote on the subject of religion and government, the book Separation
>>of Church and State in Virginia by H.J. Eckenrode, or The Writings of
>>Elder John Leland, by L.F. Greene. I had some great professors of
>>Baptist history.
>>
>>The issue of religion and government has been a matter of American
>>history from the nation's beginning, and it is obvious to me some
>>participants in your listserve discussion do not accept the
>>significance of understanding that history. You are correct in the
>>fact that the mentality of the Dark Ages still exists in America; but,
>>
>>
>
>
>
>>American separationists won the argument in Jefferson's and Madison's
>>day and will continue to debate and defend the principle because it is
>>
>>
>
>
>
>>the essence of religion freedom, as guaranteed by the words of the
>>Constitution.
>>
>>The debate is not about understanding that some disagree; it is debate
>>
>>
>
>
>
>>related to obvious confusion about constitutional principle, as
>>evidenced, not only on your listserv, but by the recent Ten
>>Commandment's Court rulings and very conflicting opinions expressed by
>>
>>
>
>
>
>>the current Justices.
>>
>>In contrast to constitutional revisionists Rehnquist, Scalia, and
>>Thomas, I agree with separationists like James Madison and Thomas
>>Jefferson. I agree with the Court's rulings in Reynolds, Davis,
>>Everson, McCollum. I agree with the Justices who wrote and concurred
>>with the following: "We have staked the very existence of our country
>>on the faith that complete separation between the state and religion
>>is best for the state and best for religion" (Everson v. Board, 330
>>U.S. at 59, McCollum v. Board, 333 U.S. at 232). The only reasonable
>>implication which can be justified from these men and these decisions
>>is that "separation means separation," not something less.
>>
>>
>>Gene Garman, M.Div.
>>America's Real Religion
>>www.americasrealreligion.org
>>
>>
>>
>>
>>-----Original Message-----
>>From: religionlaw-bounces at lists.ucla.edu
>>[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gene Garman
>>Sent: Friday, August 05, 2005 3:41 AM
>>To: Law & Religion issues for Law Academics
>>Subject: Re: What causes more religious strife: Government bodies
>>posting theTen Commandments, or courts ordering their removal?
>>
>>Eugene,
>>
>>Can it really be so difficult to understand what causes strife in
>>respect to religion and government? To start with, in terms of an
>>example, the subject line omits a significant point: the Ten
>>Commandments are Jewish religion laws. No strife there? To end with,
>>the problem is government, the essence of coercion.
>>
>>As for guidance, the recent Court split decision relating to the
>>Jewish Ten Commandments illustrates confusion, not constitutional
>>understanding. Because you object to my use of James Madison, "Father
>>of the Constitution" and cochair of the joint conference committee
>>which produced the final draft of the First Amendment's religion
>>commandments, I will accommodate you by citing other relevant sources:
>>
>>"The government of the United States is not in any sense founded on
>>the Christian religion; as it has in itself no character of enmity
>>against the laws, religion or tranquility of Musselmen [Muslims]"
>>(Attorney and President John Adams and the U.S. Senate, Treaties,
>>Hunter Miller, 2:365, 1797).
>>
>>"Believing with you [Baptists] that religion is a matter which lies
>>solely between Man and his God, that he owes account to none other for
>>
>>
>
>
>
>>his faith or his worship, that the legitimate powers of government
>>reach actions only, and not opinions, I contemplate with sovereign
>>reverence that act of the whole American people which declared that
>>their legislature [Congress] should 'make no law respecting an
>>establishment of religion, or prohibiting the free exercise thereof,'
>>thus, building a wall of separation between Church and State"
>>(Attorney and President Thomas Jefferson, letter to Danbury Baptist
>>Association of Connecticut, January 1, 1802).
>>
>>"On my arrival in the United States the religious aspect of the
>>country was the first thing that struck my attention; and the longer I
>>
>>
>
>
>
>>stayed there, the more I perceived the great political consequences
>>resulting from this new state of things. ... I questioned the members
>>of all the different sects; I sought especially the society of the
>>clergy. ... I found that they differed upon matters of detail alone,
>>and that they all attributed the peaceful dominion of religion in
>>their country mainly to the separation of church and state. I do not
>>hesitate to affirm that during my stay in America I did not meet a
>>single individual, of the clergy or the laity, who was not of the same
>>
>>
>
>
>
>>opinion on this point" (Alexis de Tocqueville, Democracy in America,
>>1835, 1:308).
>>
>>"It is proper here to view the situation of the episcopal church at
>>the termination of the revolutionary war. ... The advantages ... were
>>of much importance. ... One arose from the perfect religious freedom
>>established in the United States, without any control exercised by the
>>
>>
>
>
>
>>civil authority over spiritual concerns. In consequence of this, every
>>
>>
>
>
>
>>denomination was held to possess the full power of regulating for
>>itself the ecclesiastical government, discipline, and worship within
>>it; and of promoting, by every lawful means, its religious welfare and
>>
>>
>
>
>
>>improvement, without being subject to obstructions, or other
>>disadvantages arising from the connection of religion with secular
>>policy. On these subjects our constitutions gave no powers to the
>>civil government. Its protection was extended to all; and their
>>religious privileges were secured, and guarded from the encroachment
>>of others" (Bird Wilson, Memoir of ... Bishop William White, 88-89,
>>
>>
>1839.
>
>
>>"The divorce between Church and State ought to be absolute. It ought
>>to be so absolute that no Church property anywhere, in any state, or
>>in the nation, should be exempt from equal taxation" (Congressman and
>>eventual President, James A. Garfield, Congressional Record, 2:5384,
>>
>>
>1874.
>
>
>>Reynolds v. U.S, unanimous, 1879.
>>
>>Davis v. Beason, unanimous, 1890.
>>
>>It is not tolerance. It is freedom under law which applies to all
>>equally, regardless of religion, which eliminates strife. Separation
>>between religion and government, government neutrality, and equal
>>treatment under law is not hostility or discrimination, it is the
>>wisdom of the ages which produces peace and harmony in a society
>>composed of citizens of many faiths and of none. That is what the
>>religion commandments of the Constitution are about, and it is as
>>simple as that.
>>
>>Gene Garman, M.Div.
>>America's Real Religion
>>www.americasrealreligion.org
>>
>>
>>
>
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>
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