Joseph Smith sought to fix flaw in U.S. Constitution

By Deseret News Jul 2, 1997, 12:00am MDT

Lee Davidson

Joseph Smith was an expert on persecution.

The first leader of The Church of Jesus Christ of Latter-day Saints saw his followers harassed and chased out of New York, Ohio and Missouri in the 1820s and ’30s. A mob in Illinois would murder him, and his church members would be driven to Utah.That happened in America, despite its guarantee of freedom of religion in the First Amendment.

While not a lawyer, Smith – as a victim of persecution – spotted and warned about a constitutional flaw that allowed such abuse to proceed unchecked.

His words 154 years later sound eerily identical to what politicians said last week when the Supreme Court struck down the Religious Freedom Restoration Act (RFRA) – which had been designed to fix, in part, the problem Smith saw so long ago.

In what historians say was his only recorded criticism ever of the Constitution, which he revered, Smith wrote:

“Although it provides that all men shall enjoy religious freedom, yet it does not provide the manner by which that freedom can be preserved, nor for the punishment of government officers who refuse to protect the people in their religious rights, or punish those mobs, states or communities who interfere with the rights of the people on account of their religion.

“Its sentiments are good, but it provides no means of enforcing them,” he said.

The same was essentially said last week by Sen. Orrin Hatch, R-Utah, Sen. Ted Kennedy, D-Mass., Rep. Chuck Schumer, D-N.Y., Rep. Charles Canady, R-Fla., and several others.

Hatch, who wrote RFRA, and his allies said that law was designed to put some enforcement teeth into the Constitution’s guarantees.

The law said government should not interfere with religious practices unless it has an overriding, compelling reason for it – and then should do it only in the least restrictive way possible.

They noted changes brought by earlier court rulings had led to autopsies being forced on Hmong people despite strong religious objections; schools banning Jewish yarmulkes with all hats; stripping government funds from a university station that aired a Catholic Mass; and the Amish being forced to put lights on buggies.

But the court ruled in a 6-3 decision that Hatch’s law went too far and created new rights – such as being able to exempt churches from zoning laws – which it said was not intended by the First Amendment.

“Saying Congress doesn’t have the right to enforce the free-exercise clause (for religion) is ridiculous,” Hatch complained.

Smith complained about the same thing 15 decades earlier. After Missouri Gov. Lilburn Boggs had ordered Mormons to flee his state or be “exterminated” – Smith traveled to Washington to seek redress from Congress and President Martin Van Buren.

Unfortunately, Congress at the time was split on the issue of states’ rights – which 20 years later would erupt in Civil War. Smith wanted the federal government to intervene against actions in Missouri, but states’ rights advocates said that would unduly interfere with Missouri matters.

The Senate Judiciary Committee then wrote a report saying the appropriate place for Mormons to seek help was in courts in Missouri – which Mormons had already attempted. But the courts were controlled by their enemies.

Since that failed trip by Smith, one of the few times that the LDS Church sent high leaders to officially lobby Congress was for the Religious Freedom Restoration Act – saying it is needed to prevent persecution of others similar to what it faced in its early history.

Hatch – current chairman of the same Judiciary Committee that once wouldn’t help his LDS forebears – has vowed to quickly push other legislation, or even a constitutional amendment if necessary, to finally fix the problem.

Such action was supported by the current leader of the LDS Church, President Gordon B. Hinckley. During a prayer at a patriotic event in Provo on Sunday, he asked, referring to RFRA, “May a way be found to bring to pass another measure that would be sustained by the court.”

Mormons know the history of persecution against their church all too well. They hope it doesn’t repeat itself against others because no one listened the first (or second) time.