Ashby D. Boyle is Meridian’s Supreme Court Correspondent

Not until I spent the last several months researching constitutional religion in our secular age –I’m on sabbatical – did I learn how corrosive the secularist culture of North America has been on religious belief, on all religion per se. 

As a result, notes one –non Mormon, the religious find that together they are fighting against photographic exhibitions, school curricula, the place of religion in public life . . .  – the list goes on and on.”  “Life’s primary value,” said Princeton Professor Paul Ramsey (and my senior thesis advisor), stemming from God, transcends such dangerous distinctions.  A person’s life is entirely “a loan, and a stewardship.”  

All of these particulars reflect a conflict in America between Religion and Secularism.  Religion-–and here I mean all religions-– are in a “hearts and minds” battle against the largely faceless, unincorporated, (and like terrorism) unstate-sponsored Secularity. 

“Morals have become corrupt; they are questioned or have already been lost,” the President of the Berlin Stake, Rudolph B. Cierpka, noted at a European Area Conference in 1973, “yet the power to define what moral is is the decisive force in society.” 

Casualties of the Culture Clash in Defining What Is Moral

Two causalities in this culture clash are of particular Mormon interest. 

The first causality is 50 years old and involves the secularization by the U.S. Supreme Court of the Religion Clauses through misinterpretation.

The task here is to convince the Courts to reconnect [a] interpretation to [b] text: Amendment I:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . ”

The second causality is still a potential causality.  Here I refer to secularism’s attack on missionary work as if missionary work reflected intolerance.

Attacking Missionary Work Presuppose a Secular Interpretation of the Religion Clauses

Misinterpretation was a pre-requisite to the second still on-going issue. 

Think about it, how does one attack missionary work if the words of the Religion Clauses had been left intact?

The “standard story”, as told by secular advocates is that the Religion Clauses were secularized to make possible the claim that evangelism is out of bounds.  The story goes something like this. 

The Supreme Court saved religion from itself because of religion’s own excesses and absolutist demands, by mandating tolerance.

The standard story continues, the free exercise of religion, unless reduced to merely free speech, encouraged intolerance against the non-religious.  (Never mind that “exercise” means “conduct,” and that the Framers simple chose to expressly provide a constitutional protection which atheists would lack.) 

Justice Frankfurter thought the Religion Clauses imposed an impossible administrative task on the Court.  He did this by an absurd interpretation of the Religion Clauses, claiming because of the the fact of religious diversity, “[t]here are in the United States more then 250 distinctive religions” and that therefore the Court cannot be called upon to pick what should be “recognized and what should be rejected as satisfying the religion which the Constitution protects.” 

But Frankfurther’s reductio ad absurdum flew in the face of a solid brick wall of the Court’s precedents to conclude that the Religion Clauses of the First Amendment were unconstitutional as drafted by the Framers. 

Within a matter of years, Frankfurter’s minority view won the Court over. 

But when the Court went along with Justice Frankfurter, the interpretative fix the Court adopted was, well, to speak frankly, just plain awful.  To speak more technically, the Court’s interpretative fix has meant — to refer to what I suggested back at the start — the logical disconnect between [a] interpretation of the words of the Religion Clauses from [b] the words of the Clauses. 

Its similar to say the disconnect between: [a’] a secular interpretation of the scriptural text that Jesus was raised from the dead as meaning only a psychological truth about how Jesus is somehow merely emotionally renewing (this interpretation of scripture was that of the late Rudolph Bultmann, attacked both by Hugh Nibley and Gordon B. Hinckley), and [b’], the text.  In my example, the text is the actual, literal, positive, self-interpreting texts of scripture which witness to Christ’s resurrection from the dead.  

When interpretation uses text as a pre-text for a personal agenda of elite values, such an interpretation is not legitimate.  On religion, the Court just keeps building-up a jurisprudence of subjective arbitrariness.

And of course, if the Court makers a faulty reading of the Constitution’s words, then the Court will likely announce from  its illegitimate interpretation a faulty rule of law.  Disconnecting [a] from [b] as I’m suggesting is just one way of highlighting where and how the Supreme Court has erred.  Robert Bork saw just such disconnects as bad law and the U.S. Congress did him the favor of handing him his head on a platter.  

In this context with Justice Frankfurter, the faulty fix was to require the twinning of any religious purpose advanced with the requirement that a secular purpose also be advanced, in order to pass constitutional muster.  The Court had interpreted correctly that “the First Amendment does not select any one group or any one religion for preferred treatment.  It puts them all in that position.” 

Alas, requiring secularism won out and has been constitutional law for over 50 years.  

Using the logic of similar conclusions from similar circumstances, let us step back for some perspective. 

The Court has used what was but a single piece of secular logic within the Religion Clauses’ architecture — I refer to the admittedly wise prohibition forbidding government to select only one religion for preferred treatment to the exclusion of all others — into what is now a large and spacious court building, functioning as if a constitutional club house built for Secularism to which no religion or religious group shall be admitted, by order of the Religion Clauses of the First Amendment. 

The Court and its secular advocate cocktail partner, the ACLU, are simply clueless about religion and how it functions socially in an age such as ours, except for a few exceptions like Warren E. Burger and Sandra Day O’Connor.  (Those are subjects for another day.)

Meanwhile, the damage that’s truly being done to our constitutional republic is that being caused by secular intolerance.  “To the secularist mandate [for tolerance] should be added the details of the many ways that the regime of liberal tolerance has imposed real hardships on the free exercise of religion,” observes one constitutional/philosophical scholar.   

The Supreme Court’s manipulation of the Establishment Clause acts to block Free Exercise cases from ever reaching the Court. 

Demanding a secular effect, for example, puts “restrictions on the free exercise clause of the First Amendment” that negate it. 

The actual constitution text has been interpreted into oblivion, making interpretation more important than the text of the Constitution.  This is illegitimate, the equivalent of finger-painting over the text of the Constitution by the Justices so interpreting. 

Yet, somehow secularism successfully sold both Justices and academic elites on the suspicion that “religious intolerance is more to be feared than anything else.”  If society were to base its values on a transcendent moral authority or inspiration in our democratic society, the results would be “bigotry, fanaticism, irresponsibility, and obscurantism.” 

Secularist intolerance, to speak the truth, is so overly paranoid that it is itself has become its own enemy, a reactionary force at work in our culture.  Secularist intolerance is so worked-up, it sees intolerance at work lurking in even the most benign forms of religious expression.  It has become America’s new McCarthyism, with all the aspirations of taking on the role of censor. 

A  Secular Truth We Can All Agree With

The Constitution disallows the establishment of a particular Church, and that is a secular truth I believe we all agree with.


For example, when in 1844 Joseph Smith ran for the Presidency, his platform (with the help of William W. Phelps) was utterly secular –and clear—that the Establishment Clause forbids an established Mormonism.  He campaigned on “religious toleration”—a toleration the lack of which would claim his life from an angry mob. 

“[N]ow,” stated the Prophet’s platform, “it is time to have a president of the United States.”  Of sitting President Van Buren, these words were a critique of Van Buren’s toleration of slavery:  “Great God, how independent,” said the Prophet in his statement, meaning how ironic that Van Buren was instead dependent on the “vox Diaboli”—or voice of the Devil (as opposed to the people).  Again, the context was ironical. 

Given such circumstances, the Prophet Joseph’s ironic rhetoric could similarly apply:  it is time to have a Supreme Court of the United States.  Great God, how dependent the Court has become on the “vox Diaboli”

The constitutional deformations regarding religion were done by the Court out of a belief that thereby religion might act more tolerantly.  

How do religious citizens deal with this creeping loss of religious freedom?  That is why we have formed the American Religious Liberties Union (ARLU).

The ARLU is needed, prepared, able and willing, lacking only your support, to regularly report on how the “vox Diaboli” is at work in the Courts and then to make them known to the people so that we can initiate this discussion in our nation.

To help fight for religious freedom, is $5.00 a month reasonable?  You can help us by making a one—time or recurring donation here.

To watch and listen on these issues as our Republic goes forward into its increasingly secular future of a Supreme Court and federal judiciary that will most assuredly feel the pull of the “vox Diaboli” is the mission of the ARLU.  Nobody really reports on the Supreme Court anymore, especially on issues affecting religion.  Who remembers the 1977 suggestion of Justice Stevens to go back to the Everson principles?  We do. The key is to be alert long before the Court takes jurisdiction.

A Plan of Civil Obedience to the Constitution

Accordingly, let us stir our religious souls to acts of civil obedience to the Constitution. Towards that end of constitutional obedience, the American Religious Liberties Union (ARLU, not to be confused with its opposite, the ACLU) was founded on Constitution Day of this year (see the Meridian September 17 article  as a coalition of religious individuals. 

Religion v. Secularity is a Conflict in Which Each Religion Has a Stake.

If you are religious, then be there for your religion.   

And since you are religious, then it follows you should also stand up for Religion itself. 

For too long, we the religious have chosen sloth, to live and let live, as if it were any serious plan.  Born of a live-and let-live error, when it comes to missionary work, secularism has been allowed to redefine intolerance so that any missionary work is always an act of intolerance. 

Secularists are now prepared to construe any attempt to proselytize in negative terms, because this is, by definition, an assault on someone else’s identity.  Whatever makes somebody uncomfortable is out. 

As Charles Taylor has pointed out, any strong articulation of a powerful religious position is going to make somebody somewhere uncomfortable.  And it is just a fact that religious beliefs are held strongly, that they aren’t superficial aspects of someone.  To be religious is the center of someone’s nervous energies, and they are going to tend to want to proselyte.

According to the “new” intolerance, should I change my mind after an encounter with you — over the last thirty years the presupposition has become — just such a change proves I have been “brainwashed” (in the high school sense of the term).  One of the recent books on the Court and religion, published in 2007 by NYU Press, is aptly titled, Masters of Illusion, The Supreme Court and Religion.  “Any story sounds true until someone tells the other side and sets the record straight,” adds Proverbs 18:17.  Hence, the importance of the ARLU.

The fact in all of this which is incontrovertible (again I’m leaning on Taylor) is that to call for persons to suspend judgment about right or wrong is to call for them to suspend a constitutive feature of their moral personality.  Secularism is double-binding us, or trying to, with a ”Catch 22”. 

The privatizing, subjectifying, and silencing of religion feeds into the new unhealthy national ethos of paternalistically condemning any proselytization as violative of autonomy. 

Proselytizing, it is being said, interferes with a person’s subjective autonomy, or right to privacy, or the color of a person’s aura.  This moral conclusion draws on bad propaganda of the intellectual kind, where factual falsehoods are too often put forth simply as theories. 

Proselytizing is now considered not only bad manners but actually being labeled as morally wrong.  Rather than be candid and make this allegation against Religion – alleging immorality in any broad-based way– Religion will be criticized in any possible way where there is a shred of media credibility. 

Ironically, if the argument that missionary work is immoral ever made it into a legal brief, it would take all of 2 seconds drafting to demonstrate what a silly theory is being put to the court,  relying on paternalism to protect autonomy.  Certainly the new secular intolerance against proselytizing is a fear and distrust of religion the Framers never knew. 

Someone asking if he or she might share their views about God was not the religious bloodshed and “real” religious intolerance the Framers had escaped.  To posit anything but good manners of a Mormon missionary –of any Christian missionary– is to confess to too little contact with planet Earth.  “It is high time that Christians recognize that they have been confronted with a new paganism,” states a former General Secretary of the World Council of Churches.  He adds, we have all “been very slow to recognize the pagan elements in modern culture.”

That, I promise, we can change together. 

To donate to the ARLU to preserve religious freedom click here.

Ed. Note:  Citations above have been in some places dispensed with for ease of reading.  The full version, with footnotes, will be subsequently posted in the web page of the ARLU.