Davis v. Beason

Mon Aug 8 13:08:20 PDT 2005

I think John is right. What made Davis such a horrible decision is that the
law in question targeted beliefs rather than only actions, which is contrary
to what the Court said was acceptable in Reynolds.

Frank

On 8/8/05 1:20 PM, "John Fee" <Feej at lawgate.byu.edu> wrote:

> 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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