Last April my Church duties took me to Albania. Elder Hans B. Ringger and I were some of the first Western visitors to that newly opened country. We conferred with government officials about the reception our church’s missionaries would receive in Albania, which had banned all churches in 1967. They told us the government regretted its actions against religion, and that it now welcomed churches back to Albania. One explained, “We need the help of churches to rebuild the moral base of our country, which was destroyed by communism.” During the past months I have heard this same reaction during discussions with government and other leaders in Bulgaria, Romania, Russia, and Ukraine.

In contrast, consider what we hear about religion from some prominent persons in the United States. Some question the legitimacy of religious-based values in public policy debates. Some question the appropriateness of churches or religious leaders taking any public position on political issues.

Provoked by that contrast, I will use this occasion to speak about the role of religion-based values and religious leaders in public policy debates.

Questions of Right and Wrong

Fundamental to the role of religion in public policy is this most important question: Are there moral absolutes? Speaking to our BYU students earlier this year, President Rex E. Lee said:

“I cannot think of anything more important than for each of you to build a firm, personal testimony that there are in this life some absolutes, things that never change, regardless of time, place, or circumstances. They are eternal truths, eternal principles and, as Paul tells us, they are and will be the same yesterday, today, and forever.” 1

Unfortunately, other educators deny the existence of God or deem God irrelevant to the human condition. Persons who accept this view deny the existence of moral absolutes. They maintain that right and wrong are relative concepts, and morality is merely a matter of personal choice or expediency. For example, a university professor reported that her students lacked what she called “moral common sense.” She said they believed that “there was no such thing as right or wrong, just good or bad arguments.” 2 In that view, even the most fundamental moral questions have at least two sides, and every assertion of right or wrong is open to debate.

I believe that these contrasting approaches underlie the whole discussion of religious values in public policy. Many differences of opinion over the role of religion in public life simply mirror a difference of opinion over whether there are moral absolutes. But this underlying difference is rarely made explicit. It is as if those who assume that all values are relative have established their assumption by law or tradition and have rendered illegitimate the fundamental belief of those who hold that some values are absolute.

One of the consequences of shifting from moral absolutes to moral relativism in public policy is that this produces a corresponding shift of emphasis from responsibilities to rights. Responsibilities originate in moral absolutes. In contrast, rights find their origin in legal principles, which are easily manipulated by moral relativism. Sooner or later the substance of rights must depend on either the voluntary fulfillment of responsibilities or the legal enforcement of duties. When our laws or our public leaders question the existence of absolute moral values, they undercut the basis for the voluntary fulfillment of responsibilities, which is economical, and compel our society to rely more and more on the legal enforcement of rights, which is expensive.

Some moral absolutes or convictions must be at the foundation of any system of law. This does not mean that all laws are so based. Many laws and administrative actions are simply a matter of wisdom or expediency. But many laws and administrative actions are based upon the moral standards of our society. If most of us believe that it is wrong to kill or steal or lie, our laws will include punishment for those acts. If most of us believe that it is right to care for the poor and needy, our laws will accomplish or facilitate those activities. Society continually legislates morality. The only question is whose morality and what legislation.

In the United States, the moral absolutes are the ones derived from what we refer to as the Judeo-Christian tradition, as set forth in the Bible—Old Testament and New Testament.

Despite ample evidence of majority adherence to moral absolutes, some still question the legitimacy of a moral foundation for our laws and public policy. To avoid any suggestion of adopting or contradicting any particular religious absolute, some secularists argue that our laws must be entirely neutral, with no discernable relation to any particular religious tradition. Such proposed neutrality is unrealistic, unless we are willing to cut away the entire idea that there are moral absolutes.

Of course, not all moral absolutes are based on traditional religion. A substantial segment of society has subscribed to the environmental movement, which Robert Nisbet, a distinguished American sociologist, has characterized as a “national religion,” with a “universalized social, economic, and political agenda.” 3 So far as I am aware, there has been no responsible public challenge to the legitimacy of laws based on the environmentalists’ set of values. I don’t think there should be. My point is that religious values are just as legitimate as those based on any other comprehensive set of beliefs.

Religion and the Public Sector

Let us apply these thoughts to the role of religions, churches, and church leaders in the public sector.

Some reject the infusion of religious-based values in public policy by urging that much of the violence and social divisiveness of the modern world is attributable to religious controversies. But all should remember that the most horrible moral atrocities of the twentieth century in terms of death and human misery have been committed by regimes that are unambiguously secular, not religious.

Even though we cannot reject religious values in law-making on the basis of their bad record by comparison with other values, there are examples of hostility to religious values in the public sector. For example, less than a decade ago, the United States Department of Justice challenged a federal judge’s right to sit on a case involving the Equal Rights Amendment on the ground that his religious views would prejudice him. The judge was Marion Callister. The religious views were LDS. In that same decade, the American Civil Liberties Union took the position that any pro-life abortion law was illegitimate because it must necessarily be founded on religious belief. 4

A few years ago some Protestant and Jewish clergymen challenged a federally financed program to promote abstinence from sexual activity among teenage youngsters. The grant recipients included BYU and some Catholic charities in Virginia and Michigan. The ACLU attorney who filed this challenge declared that “the ‘chastity law’ is unconstitutional because it violates the requirement for separation of church and state” because taxpayer dollars “are going to religious institutions, which use the funds to teach religious doctrines opposing teen-age sex and abortion.” 5 In the meantime, the “value” judgments that permit public schools to distribute birth control devices to teenagers supposedly violate no constitutional prohibition because the doctrine that opposes chastity is secular.

During this same period, Professor Henry Steele Commager criticized the Moral Majority and the Roman Catholic Church for “inject[ing] religion into politics more wantonly than at any time since the Know-Nothing crusade of the 1850’s.” Writing in a New York Times column, this distinguished scholar asserted that “what the Framers [of the U. S. Constitution] had in mind was more than separating church and state: it was separating religion from politics.” While conceding that no one could question the right to preach “morality and religion,” Commager argued that churchmen of all denominations crossed an impermissible line “when they connect morality with a particular brand of religious faith and this, in turn, with political policies.” 6

Apparently, churchmen can preach morality and religion as long as they do not suggest that their particular brand of religion has any connection with morality or that the resulting morality has any connection with political policies. Stated otherwise, religious preaching is okay so long as it has no practical impact on the listeners’ day-to-day behavior, especially any behavior that has anything to do with political activity or public policy.

As we know, the idea that there is an absolute right and wrong comes from religion, and the absolute values that have influenced law and public policy are most commonly rooted in religion. In contrast, the values that generally prevail in today’s academic community are relative values.

I have read serious academic arguments to the effect that religious people can participate in public debate only if they conceal the religious origin of their values by translating them into secular dialect. In a nation committed to pluralism, this kind of hostility to religion should be legally illegitimate and morally unacceptable. It is also irrational and unworkable, for reasons explained by BYU law professor Frederick Mark Gedicks:

“Secularism has not solved the problem posed by religion in public life so much as it has buried it. By placing religion on the far side of the boundary marking the limit of the real world, secularism prevents public life from taking religion seriously. Secularism does not teach us to live with those who are religious; rather, it demands that we ignore them and their views. Such a ‘solution’ can remain stable only so long as those who are ignored acquiesce in their social situation.” 7

Fortunately, the Supreme Court has never held that citizens could not join together to translate their moral beliefs into laws or public policies even when those beliefs are derived from religious doctrine. Indeed, there are many sophisticated and articulate spokesmen for the proposition that the separation of church and state never intended to exclude religiously grounded values from the public square. For example, I offer the words of Richard John Neuhaus:

“In a democracy that is free and robust, an opinion is no more disqualified for being ‘religious’ than for being atheistic, or psychoanalytic, or Marxist, or just plain dumb. There is no legal or constitutional question about the admission of religion to the public square; there is only a question about the free and equal participation of citizens in our public business. Religion is not a reified ‘thing’ that threatens to intrude upon our common life. Religion in public is but the public opinion of those citizens who are religious.

“As with individual citizens, so also with the associations that citizens form to advance their opinions. Religious institutions may understand themselves to be brought into being by God, but for the purposes of this democratic polity they are free associations of citizens. As such, they are guaranteed the same access to the public square as are the citizens who comprise them.” 8

No person with values based on religious beliefs should apologize for taking those values into the public square. Religious persons need to be skillful in how they do so, but they need not yield to an adversary’s assumption that the whole effort is illegitimate. We should remind others of the important instances in which the efforts of churches and clergy in the political arena have influenced American public policies in great historical controversies whose outcome is virtually unquestioned today. The slavery controversy was seen as a great moral issue and became the major political issue of the nineteenth century because of the preaching of clergy and the political action of churches. A century later, churches played an indispensable role in the civil rights movement, and, a decade later, clergymen and churches of various denominations were an influential part of the antiwar movement that contributed to the end of the war in Vietnam.

Many sincere religious people believe there should be no limitations on religious arguments on political issues so long as the speaker genuinely believes those issues can be resolved as a matter of right or wrong.

I believe that questions of right and wrong, whether based on religious principles or any other source of values, are legitimate in any debate over laws or public policy. Is there anything more important to debate than what is right or wrong? And those arguments should be open across the entire political spectrum. There is no logical way to contend that religious arguments or lobbying are legitimate on the question of abstinence from nuclear war by nations but not on the question of abstinence from sexual relations by teenagers.

Church Participation in Political Debate

What limitations should churches and their leaders observe when they choose to participate in public debate on political issues?

I emphasize at the outset that I am discussing limits to guide all churches across a broad spectrum of circumstances. I am not seeking to define or defend a Mormon position. As a matter of prudence, our church has confined its own political participation within a far smaller range than is required by the law or the Constitution. Other churches have chosen to assert the full latitude of their constitutional privileges and, in the opinion of some, have even exceeded them.

Where should we draw the line between what is and is not permissible for church and church-leader participation in public policy making?

At one extreme, we hear shrill complaints about political participation by any persons whose political views are attributable to religious beliefs or the teachings of their church. The words “blind obedience” are usually included in such complaints. Complaints there are, but I am not aware of any serious or rational position that would ban religious believers from participation in the political process. The serious challenges concern the participation of churches and church leaders.

Perhaps the root fear of those who object to official church participation in political debates is power: They fear that believers will choose to follow the directions or counsel of their religious leaders. Those who have this fear should remember the celebrated maxim of Jefferson: “Error of opinion may be tolerated where reason is left free to combat it.” 9 Some may believe that reason is not free when religious leaders have spoken, but I doubt that any religious leader in twentieth-century America has such a grip on followers that they cannot make a reasoned choice in the privacy of the voting booth. In fact, I have a hard time believing that the teachings of religions or churches deprive their adherents of any more autonomy in exerting the rights of citizenship than the teachings and practices of labor unions, civil rights groups, environmental organizations, political parties, or any other membership group in our society.

I submit that religious leaders should have at least as many privileges as any other leaders, and that churches should stand on at least as strong a footing as any other corporation when they enter the public square to participate in public policy debates. The precious constitutional right of petition does not exclude any individual or any group. The same is true of freedom of speech and the press. When religion has a special constitutional right to its free exercise, religious leaders and churches should have more freedom than other persons and organizations, not less.

If churches and church leaders should have full rights to participate in public policy debates, should there be any limits on such participation?

Of course there are limits that apply specially to churches and church officials, as manifest in the United States Constitution’s prohibition against Congress’s making any law respecting an establishment of religion. Some linkages between churches and governments are obviously illegitimate. It would clearly violate this prohibition if a church or church official were to exercise government power or dictate government policies or direct the action of government officials independent of legal procedures or political processes.

Fundamentally, I submit that there is no persuasive objection in law or principle to a church or church leader taking a position on any legislative matter, if it or he or she chooses to do so.

Now, relative to church participation in public debate, when churches or church leaders choose to enter the public sector to engage in debate on a matter of public policy, they should be admitted to the debate and they should expect to participate in it on the same basis as all other participants. In other words, if churches or church leaders choose to oppose or favor a particular piece of legislation, their opinions should be received on the same basis as the opinions offered by other knowledgeable organizations or persons, and they should be considered on their merits.

By the same token, churches and church leaders should expect the same broad latitude of discussion of their views that conventionally applies to everyone else’s participation in public policy debates. A church can claim access to higher authority on moral questions, but its opinions on the application of those moral questions to specific legislation will inevitably be challenged by and measured against secular-based legislative or political judgments. As James E. Wood observed, “While denunciations of injustice, racism, sexism, and nationalism may be clearly rooted in one’s religious faith, their political applications to legislative remedy and public policy are by no means always clear.” 10

Finally, if church leaders were also to exhibit openness and tolerance of opposing views, they would help to overcome the suspicion and resentment sometimes directed toward church or church-leader participation in public debate.

In summary, I have pointed out that many U.S. laws are based on the absolute moral values most Americans affirm, and I have suggested that it cannot be otherwise. I have contended that religious-based values are just as legitimate a basis for political action as any other values. And I have argued that churches and church leaders should be able to participate in public policy debates on the same basis as other persons and organizations, favoring or opposing specific legislative proposals or candidates if they choose to do so.

Politicians sometimes seek to use religion for political purposes, and they sometimes even seek to manipulate churches or church leaders. Ultimately this is always self-defeating. Whenever a church (or a church leader) becomes a pawn or servant of government or a political leader, it loses its status and the credibility it needs to perform its religious mission.

Churches or their leaders can also be the aggressors in the pursuit of intimacy with government. The probable results of this excess have been ably described as “the seduction of the churches to political arrogance and political innocence or even the politicizing of moral absolutes.” 11

The relationship in the world between church and state and between church leaders and politicians should be respectful and distant, as befits two parties who need one another but share the realization that a relationship too close can deprive a pluralistic government of its legitimacy and a divine church of its spiritual mission. Despite that desirable distance, government need not be hostile to religion or pretend to ignore God.

On 25 June 1988, in Williamsburg, Virginia, I signed the Williamsburg Charter on behalf of The Church of Jesus Christ of Latter-day Saints. 1 Written by a group of farsighted U.S. religious, political, and community leaders, that charter celebrates and reaffirms religious liberty as the foremost freedom of the First Amendment of the United States Constitution. The sponsors’ invitation to participate explains that they were seeking “a fresh articulation of the ground rules for relating religion and public life in our time.”

Our church was one of six “prominent American faith communities” whose representatives were invited to make brief statements as they signed the Charter. This is what I said on that occasion:

“The people called Mormons have known the sting of official repression and the lash of popular fury. We endorse the need and join in this celebration and reaffirmation of religious liberty.

“The Declaration of Independence had posited these truths to be ‘self-evident’: that all men ‘are endowed by their Creator with certain inalienable rights’ and that governments are instituted ‘to secure these rights.’

“The first words of the Bill of Rights provide the dual guarantees of religious liberty. The subsequent words that guarantee the freedoms of speech, press, and assembly provide the means to make our liberties secure, but it is the initial guarantee of religious freedom that explains why all these other liberties are desired.

“In our nation’s founding and in our Constitutional order, religious liberty is the motivating and basic civil liberty.

“In its Articles of Faith, The Church of Jesus Christ of Latter-day Saints declares: ‘We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.’ ” (A of F 1:11.)

Freedom of Religion: The Basic Civil Liberty

The Williamsburg Charter declares: “The First Amendment Religious Liberty provisions have both a logical and historical priority in the Bill of Rights.” Indeed, religious liberty is the oldest of the internationally recognized “human rights,” providing motivation, precedent, and support for the growth of other freedoms, such as the freedoms of speech, the press, and assembly. For many of the Founding Fathers, and for many Americans today, religious liberty is the basic civil liberty because faith in God and his teachings and the active practice of religion are the most fundamental guiding realities of life. Thus, for many citizens, religious liberty provides the reason all other civil liberties are desired.

The Declaration of Independence affirms that governments are instituted to secure the inalienable rights with which men and women are endowed by their Creator. The United States Constitution was established to provide a practical and official guarantee of those rights. Its provision securing religious liberty was divinely inspired, not only to bless the inhabitants of this nation but also to stand as an example to all the nations of the world.

Though a fervent believer in these things, I am certainly not naive about the realities of constitutional law. As a law clerk in the United States Supreme Court, I saw its nine justices grapple with the task of interpreting the First Amendment. Later, as a lawyer and law professor for more than twenty years, I did some of that grappling myself. As legal counsel, I helped draft the Bill of Rights for the Illinois Constitutional Convention of 1970. As a Justice of the Utah Supreme Court for three and a half years, I had the sworn duty to uphold and interpret the constitutions of our state and nation. What I have to say about the subject of religious liberty draws upon those experiences.

Restoring Religion to an Honorable Place in Public Life

The Williamsburg Charter reminds us that despite our constitutional prohibition against establishing a state religion, in many areas of the United States during the nineteenth century there was “a de facto semi-establishment of one religion in the United States: a generalized Protestantism given dominant status in national institutions, especially in the public schools.” In contrast, the Charter continues, “In more recent times, and partly in reaction, constitutional jurisprudence has tended, in the view of many, to move toward the de facto semi-establishment of a wholly secular understanding of the origin, nature, and destiny of humankind and of the American nation.”

Over time, these “wholly secular understandings” have attained “a dominant status,” until there is a “striking absence today of any national consensus about religious liberty as a positive good.” The Charter concludes: “The renewal of religious liberty is crucial to sustain a free people that would remain free.”

Support for the Williamsburg Charter is not a renunciation of the secular or a suggestion that one must choose between religion on the one hand and the whole body of secular learning on the other. That is a false dichotomy.

The hundreds of signers of the Williamsburg Charter, who come from every segment of life in the United States, are seeking to offset the symbol and pattern of hostility to religion and indifference to religious liberty that have characterized many court decisions, much media publicity, and some public understandings for more than a quarter of a century. They seek to restore religion to an honorable place in public life.

To “Live with Each Other’s Deepest Differences”

That task is nicely characterized by the question posed in the Charter, “How do we live with each other’s deepest differences?” In the United States, we have seen what the Charter calls “a breakdown in understanding of how personal and communal beliefs should be related to public life.” Recapturing that understanding is a task that will require a high order of intelligence, tolerance, and goodwill, but it is vital that we do so.

Learning how to “live with each other’s deepest differences” is very important for Latter-day Saints, whose mission requires them to be gracious in the few areas where they are in the majority and welcomed as considerate and productive in the rest of the world, where they are in the minority.

The Law: Hostile or Neutral toward Religion?

In my view, our current condition is rooted in the 1962 United States Supreme Court decision that the New York State Board of Regents could not require public school children to recite a prayer authored by the Regents. The essence of that decision was expressed in this sentence from the Court’s opinion:

“It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave the purely religious function to the people themselves, and to those the people choose to look to for religious guidance.” 2

Elsewhere in its opinion the Court explained: “Government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.” 3

When the school prayer cases were decided, I interpreted them to forbid state-authored and state-required prayers. As such, the cases, I thought, were correctly decided. What I did not foresee, but what was sensed by persons whose vision was far greater than my own, was that these decisions—defensible and probably even essential as rulings on the facts before the Court—would set in motion a chain of legal and public and educational actions that would bring us to our current circumstance, in which we must reaffirm and even contend for religious liberty.

In short, many understand the law today as being hostile rather than neutral toward religion—as forbidding all public prayers rather than simply prohibiting state-authored and state-required prayers in public schools. Instead of just preventing instances of state-sponsored religion in the public schools, the school prayer cases have unleashed forces that have sometimes been used to prevent the free exercise of religion.

At the time the first school prayer cases were decided, President David O. McKay saw the direction of those decisions with prophetic vision. In December 1962, he said: “By making that [New York Regents’ prayer] unconstitutional, the Supreme Court of the United States severs the connecting cord between the public schools of the United States and the source of divine intelligence, the Creator himself.”

Then, he offered this farsighted caution: “By law, the public schools of the United States must be non-denominational. They can have no part in securing acceptance of any one of the numerous systems of belief regarding God and the relation of mankind thereto. Now let us remember and emphasize that restriction applies to the atheist as well as to the believer in God.” 4

Six months later, just after the Supreme Court’s decision forbidding Bible-reading in the schools, 5 President McKay said:

“Recent rulings of the Supreme Court would have all reference to a Creator eliminated from our public schools and public offices.

“It is a sad day when the Supreme Court of the United States would discourage all reference in our schools to the influence of the phrase ’divine providence’ as used by our founders of the Declaration of Independence.

“Evidently the Supreme Court misinterprets the true meaning of the First Amendment, and are now leading a Christian nation down the road to atheism.” 6

It is clear from President McKay’s references that he was concerned about the direction and long-range effect of these decisions. History shows that his concern was well founded.

A Developing Gulf between Religion and Public Life

In the beginning, eminent legal scholars like Dean Erwin N. Griswold of the Harvard Law School ridiculed the idea that the Supreme Court’s school prayer decisions would lead to a great gulf between religion and public life. In a notable lecture published in the University of Utah Law Review, Dean Griswold said: “To say that [these great provisions of the First Amendment] require that all trace of religion be kept out of any sort of public activity is sheer invention.” 7

However, as time went by, the combatants on both sides of this debate took more and more extreme positions. They joined issue on controversies that compelled the courts to rule on ever-more-technical details on the offering of prayers or the use of religious symbols in public places.

What the legal scholars did not foresee is the extent to which the school-prayer and Bible-reading decisions would shift the burden of proof with respect to religious practices in public life. In the past, religion had been an accepted part of public life in the American tradition; it now became something that had to prove its right to remain in the public square. The principles first announced in the early 1960s had by the 1970s hardened into mechanical constitutional formulas that could be interpreted in ways that were hostile to religion. Too many of the lawyers trained during this period have come to accept these wooden formulas as axioms, with the result that constitutional notions of religious liberty have been impoverished.

For example, the observance of a moment of silence as an alternative to school prayer was first suggested in a United States Supreme Court opinion. Twenty years later, after legislatures in nearly half of the states had passed laws authorizing a moment of silence in the public schools, the Supreme Court held one such law unconstitutional. 8

Gradually, what had been a supportive relationship between church and state (and at times excessively so) has become what many perceive as a hostile one. Now many see religion as suspect, while many others see government as repressive toward religion. It is now essential that a wise and public-spirited group like the Williamsburg Charter Foundation come forward for a purpose that would have seemed remarkable a century ago—to remind us of our religious heritage and to declare the value of religious liberty to a nation that was, in truth, founded to protect it.

The Need for Education on the Role of Religion in a Pluralistic Society

The Williamsburg Charter Foundation has wisely begun its effort by focusing on public education. Affirming that education is incomplete if it does not give attention to the role of religious liberty in American life, the Foundation has called for the public schools to teach about religious liberty in a pluralistic society and has prepared materials for doing so.

The need for such teaching should be obvious. As a result of misunderstanding the importance of religious liberty in our Constitutional order, many citizens and even some educators have come to consider it bad taste or even illegal for public school teachers even to mention religious influences or commitments. No wonder we suffer an appalling ignorance of our political and cultural origins.

In a study done for the Department of Education, New York University psychologist Paul Vitz documented the extent to which textbook authors have avoided references to God or to religion. Vitz concluded that many students could never learn from reading their history textbooks “that religion has played a significant role in American history.” For example:

• One American history textbook defines pilgrims as “people who make long trips.” Another text lists three hundred important events in American history, and only three of the three hundred have anything to do with religion. No religious event is listed after 1775—an apparent judgment that each of the other items, including the appearance of an electric streetcar on the streets of Richmond, Virginia, in 1886, was more important than any religious event in America since 1775.

• A reader for sixth-graders includes an Isaac Singer story in which a boy with a problem prays to God for himself and his goat, and when the problem is resolved, the boy thanks God. But the public school text omits the name of God and declares that the boy thanks “goodness.”

• Textbook discussions of pre-Civil War abolitionism and the recent civil rights movement commonly skim over or totally omit the religious origins of these great forces and the religious motivations of many who furthered them. 9

Removing the name of God and ignoring the influence of religious motivations distort facts and cloud understanding. If gold were someone’s God (and there are such people), could you give an accurate account of the western U.S. settlements attributable to the Gold Rush without mentioning the word gold?

The Williamsburg Charter Foundation is not the first group to call for more public school study about religion. In a 1986 editorial, the Washington Post called attention to a study by People for the American Way, which showed that American history textbooks hardly mention religion as a force in U.S. history. The Post observed: “The absence of any discussion of a subject that has motivated, inspired, and, at times, torn apart important elements of the population is ridiculous. … A student who has no curiosity about the beliefs of others will never be an educated person.” 10

In 1987 the Association for Supervision and Curriculum Development, an influential public education group, called for action by educators, textbook publishers, and civic leaders to halt what they called the “rigorous exclusion” of religion from school textbooks and curricula. 11

I have been gratified at the rapidity with which a supportive consensus has developed on this subject. It has caused me to wonder whether this consensus just grew rapidly in the last few years or whether it was always there—hidden, but too shy to emerge in an atmosphere of hostility and distrust.

I prefer to believe that individuals have always had the good sense to understand that a person cannot be educated without understanding religious traditions and conflicts. One cannot understand the great music of the Western world, such as music composed for the mass or Handel’s Messiah, and one cannot understand the great art of the Western world, such as the religious themes of the masters of the Middle Ages, without understanding the religious beliefs and traditions of the people by whom and for whom those works of art were created. It is surely true that a reader cannot understand the language and imagery of the great literature of the Western world without understanding the Bible.

The Williamsburg Charter Foundation proposes a public school curriculum titled “Living with Our Deepest Differences—Religious Liberty in a Pluralistic Society.” In this course of study, (1) the curriculum approach to religion is academic, not devotional; (2) the school strives for student awareness but does not press for student acceptance of religion; (3) the school sponsors study about, not practice of, religion; (4) the school exposes students to a diversity of religious views but does not impose any particular one; (5) the school educates about all religions but does not promote or denigrate any of them; and (6) the school may inform about various beliefs but does not seek to conform the student to any particular one. In my opinion, this is an appropriate program. It would serve the interests of the United States and its citizens.

Misunderstandings about Prayer in Public Settings

I conclude by referring to a current controversy that I think exemplifies the public misunderstanding from which we need to be liberated by educational efforts such as those of the Williamsburg Charter Foundation.

Initially, the United States Supreme Court’s school prayer decision outlawed only state-authored and state-required prayers. Later, the courts forbade any prayers in public school classrooms, even those that were privately composed or optional. The courts were concerned with the possibility that impressionable young students would be coerced by such publicly sponsored religious exercises. In contrast, the Supreme Court has clearly held that prayers at the beginning of a state legislative assembly are not forbidden. The Court reasoned that, unlike school children, legislators are adults, “presumably not readily susceptible to ‘religious indoctrination.’ ” 12

Despite the absence of coercion from prayers in adult settings, and despite the fact that prayers are frequently offered in legislative and other public meetings in every state in the union, 13 some have continued their efforts to force the abolition of prayers at government or other public meetings. As a consequence, immense resources of time and money have been devoted to thrashing out the constitutional limits on prayer in public places.

The Williamsburg Charter contains an insight that should help resolve such controversies: “It is false to equate ‘public’ and ‘government.’ In a society that sets store by the necessary limits on government, there are many spheres of life that are public but non-governmental.”

Similarly, I believe that much of the controversy over prayer in public places suffers from a failure to distinguish between governmental action and accommodation of private expression in a public place. The fact that prayer or other religious expression occurs in a public setting does not mean that the government is endorsing religion. It only means that public officials recognize the reality that many citizens have religious beliefs and care about religious matters.

A decision outlawing prayers in public school classrooms, which are tax-supported government institutions responsible for instructing impressionable youth, does not forbid prayers by and for adults in settings that are merely public, such as town meetings, patriotic programs, Parent-Teacher Association functions, and the like. Though offered in a public place, such prayers are personal—not governmental—devotions.

Some Recent Controversies

That distinction has been overlooked in some recent controversies in Utah.

A little more than two years ago, the American Civil Liberties Union pressed for the elimination of prayers at the beginning of Salt Lake County Commission meetings. The A.C.L.U. objected to the fact that most of the people who offered such prayers concluded them “in the name of Jesus Christ.” They claimed that this prayer language constituted an official government endorsement of the majority faith in Utah, The Church of Jesus Christ of Latter-day Saints, whose members pray in that way. In what many interpreted as a generous and appropriate response to that concern, the county commission enlarged its list to invite representatives of every religious organization in the county to take a turn, in rotation, in offering prayers at commission meetings. This apparently settled the issue. 14

More recently, similar controversies have arisen over prayers offered in Utah high school graduation exercises. A suit filed on behalf of two students in one school district objected that the prayers were “denominational,” since they mentioned the name of Jesus Christ. The suit asked that such prayers be “non-denominational.” 15

Interpreting this as a plea for a court order requiring that the name of Jesus Christ not be used in prayers offered at a public high school graduation exercise, I thought of the first school prayer decision. In that case, the Supreme Court said government had no power to author prayers to be offered by its citizens. Before we acquiesce in the use of judicial power to indicate what words cannot be included in a prayer, we should remember that if it is no part of the business of government to write a prayer, then it is no part of the business of a court to censor a prayer.

The United States Supreme Court voiced that principle just six years ago in rejecting an argument that the prayers in a state legislative assembly were illegal because they were always offered by a chaplain of one religious denomination. The Court said: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 16

Using this reasoning, I concluded that the attempt in Utah to have a court dictate what could not be included in a prayer would not succeed. But even a winning case can be expensive to defend, and in the graduation-exercise case, economic pressure forced a decision upon the school board. They evaluated the costs of resisting what would likely be a long court battle and concluded that it was not in the best interests of the school district to use its scarce resources in that way. Consequently, they announced that the high schools of that district will no longer have prayers as part of their graduation exercises. 17

A neighboring district announced that they would retain prayers in their schools’ graduation exercises, but they said they would be more careful to request “non-denominational prayers.” Similarly, the first district announced that they would continue to open their board meetings with prayer, but opened that particular session with what they called “a generic prayer.” 18

It is no part of the business of government to prescribe prayers or to censor them. Prayer is too sacred for its content to be the subject of a lawsuit. When the threat of a lawsuit causes someone to modify the content of a prayer, we are in desperate need of a Williamsburg Charter to remind us of the importance of religious liberty.

Tolerating Each Other’s Differences

If citizens of the United States cannot tolerate differences in the way others pray, we have suffered a tragic loss in the vitality of religious liberty. I am disappointed that anyone of any faith would abandon his or her chosen manner of prayer and offer a so-called “generic” prayer because someone threatened a lawsuit. Despite my own strong preferences, I would not even consider trying to influence a person of another faith to change the content of a public prayer, and I object to any use of legal pressures to accomplish such changes by anyone.

After I expressed this opinion in a speech last year in Boise, Idaho, a friend sent me a publication reporting a related opinion by a respected Protestant theologian. The newly-appointed chaplain (and former dean) of the Harvard Divinity School, Krister Stendahl, reportedly observed that in his school, with its tradition of pluralism, “it wasn’t quite kosher to mention Jesus [in a prayer]. You become so conscious of using a language which would be for everybody, so nobody was at home.” He reacted by stating his intent to “guard fiercely the freedom of every person to pray and speak in ways important to him or her—lest the specter of ‘pluralism’ mute authentic expression of devotion.” 19

Chaplain Stendahl made the following suggestion, which I believe is an appropriate procedure for one invited to offer a prayer in a public meeting containing persons of various faiths:

“It can never be wrong to pray in the presence of people of other faiths. But when one does that, one cannot use the word ‘we’ in an absolute sense, because that would mean that I surmise that only those who think like me are with me.”

Instead, he said, when preaching among those of other faiths—in a synagogue, for example, as he sometimes does—he is careful to speak in the first person. “I might say, ‘and this I pray, in the name of Jesus, who brought me into communion with the God of Abraham, Isaac and Jacob.’ I think it’s quite fair to mention my Jesus in the synagogue, but I should speak my own language and not we it.” 20

The Legality of Graduation Prayers

Appellate court opinions issued in the last several years have split on the legality of prayers at high school graduation exercises. 21 Judges are divided on the question, and the United States Supreme Court has not yet ruled on the controversy.

I am hopeful that the United States Supreme Court will reaffirm the attitude of accommodation voiced in its decision sustaining the constitutionality of released time for public school students to attend religious classes. In that case, decided in 1952, the Court said:

“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.” 22

Some Possible Solutions

As the law stands today, school boards who are challenged on the legality of prayers offered on public ceremonial occasions have several alternatives.

They might continue to have such prayers and risk the possibility of expensive litigation, though the costs might be shared with other districts similarly situated.

They might abandon a long-standing practice of having such prayers and risk being seen as having been manipulated by a litigation strategy rooted in the reality that lawsuits are cheap to begin but expensive to defend. A small but determined minority can use the cost of litigation as an instrument of intimidation to coerce a majority to accept minority social, cultural, or even religious standards that could not or at least should not be imposed by legal process in a fully litigated case.

A school district might substitute a moment of silence in which all are invited to offer private devotions, but this could be seen as a compromise unacceptable to anyone.

In my view, the one alternative that is entirely unacceptable is for a school district to attempt to prescribe or censor prayers to be offered at any function in the district.

I close in the spirit of the Williamsburg Charter, by quoting the First Presidency in a statement made more than ten years ago:

“Those who oppose all references to God in our public life have set themselves the task of rooting out historical facts and ceremonial tributes and symbols so ingrained in our national consciousness that their elimination could only be interpreted as an official act of hostility toward religion. Our constitutional law forbids that.

“As the ruling principle of conduct in the lives of many millions of our citizens, religion should have an honorable place in the public life of our nation, and the name of Almighty God should have sacred use in its public expressions.” 23

May it always be so!

At the request of the First Presidency and the Quorum of the Twelve Apostles, Elder Dallin H. Oaks of the Quorum of the Twelve testified in support of the Religious Freedom Restoration Act before the U.S. House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights on 13 May 1992. Only two other times has an LDS Church representative brought an official Church stance to Congress.

If passed, the bill, which has the sponsorship of 188 members of Congress and the support of a broad spectrum of religious and civil libertarian groups, would restore the standard that requires government officials to show a “compelling governmental interest” before interfering with religious practices.

The introduction of the bill came in the wake of the 1990 U.S. Supreme Court decision in Employment Division v. Smith. The Court did away with the compelling governmental interest clause, ruling that a state need only show that its action advances a legitimate government policy.

The following is the text of Elder Oaks’s testimony before the subcommittee:

Mr. Chairman, I am privileged to appear before you to testify on behalf of The Church of Jesus Christ of Latter-day Saints in support of Congressional enactment of H.R. 2797, the Religious Freedom Restoration Act. I am here to present the official position of our eight-million-member church at the request of its highest governing bodies, the First Presidency and the Quorum of the Twelve Apostles, of which I am a member. As a general rule, our church does not take positions on specific legislative initiatives pending in Congress or state legislatures. Our action in this matter is an exception to this rule. It underscores the importance we attach to this congressional initiative to restore to the free exercise of religion what a divided Supreme Court took away in Employment Division v. Smith (1990).

I have had considerable personal experience with the Constitution and laws governing the free exercise of religion. Upon graduation from the University of Chicago Law School in 1957, I served as a law clerk to Chief Justice Earl Warren. For a decade I was a professor of law at the University of Chicago. During the last year of that service, I was also the executive director of the American Bar Foundation. For nine years I was president of Brigham Young University, the nation’s largest church-related university. I then served for three and one-half years as a justice on the Utah Supreme Court. I concluded that service in 1984 when I was called to full-time service as a member of the Quorum of the Twelve Apostles. My professional publications have included three books and numerous articles on the legal relationships between church and state.

History

The history of The Church of Jesus Christ of Latter-day Saints (sometimes called Mormon or LDS) in America illustrates the importance of requiring a “compelling governmental interest” before laws can be allowed to interfere with the free exercise of religion.

I know of no other major religious group in America that has endured anything comparable to the officially sanctioned persecution that was imposed upon members of my church by federal, state, and local government officials. In the nineteenth century our members were literally driven from state to state, sometimes by direct government action, and finally expelled from the existing borders of the United States.

On 27 October 1838, Missouri Governor Lilburn W. Boggs issued an order to the state militia that the Mormons “must be treated as enemies and must be exterminated or driven from the state, if necessary for the public good.” Three days later, segments of the Missouri militia attacked a small Mormon settlement at Jacob Haun’s mill. Seventeen men, women, and children were killed and thirteen more were wounded. After a reign of terror that included the burning of homes, the seizing of private property, the beating of men, and the raping of women, over ten thousand Mormons were driven from that state.

In the 1840s, after founder and Church President Joseph Smith was murdered by a mob while in state custody, Illinois state authorities supported or condoned the lawless element who evicted the Mormons from their cities and drove them across the Mississippi River to the West. This expulsion compelled the Mormons’ epic migration to the Great Basin, which was then beyond the borders of the United States.

The experience of the Mormon pioneers is analogous to the compelled migration of many of this country’s founding settlers—the Pilgrims, Separatists, Quakers, Catholics, and Puritans who fled England and Holland to escape religious persecution and to seek a sanctuary where they could practice their religion free from persecution.

I have a personal feeling for these persecutions, since some of my forebears came to America as refugees from religious persecution in their native lands, and most of my ancestors suffered with the Mormons in their earliest persecutions. For example, my third great-grandmother, Connecticut-born Catherine Prichard Oaks, was among the Mormons expelled from Missouri and later driven out of Illinois. Fleeing religious persecution, she died on the plains of Iowa, a martyr to her faith.

Following the pattern set by William Penn, whose 1682 constitution for the Quaker Colony of Pennsylvania had a model provision for safeguarding the religious liberties of its citizens, leaders of my church drafted a constitution for the proposed State of Deseret that contained a strongly worded guarantee of religious freedom. This proposed state applied for admission to the Union in 1849, but in the Compromise of 1850, Congress organized the Mormon areas into the Territory of Utah.

The persecutions continued. In the 1850s, the government of the United States, too willing to believe lies about conditions in Utah, sent an army of several thousand federal troops to subdue the supposedly rebellious Mormons.

From the 1860s through the 1880s, Congress and some state legislatures passed laws penalizing the religious practices and even the religious beliefs of the Latter-day Saints. Under this legislation, the corporate entity of The Church of Jesus Christ of Latter-day Saints was dissolved and its properties were seized. Many Church leaders and members were imprisoned. People signifying a belief in the doctrine of my church were deprived of the right to hold public office or sit on juries, and they were even denied the right to vote in elections.

Most of these denials of religious freedom received the express approval of the United States Supreme Court. It was a dark chapter in the history of religious freedom in this nation. I have a personal feeling for this chapter as well. My grandfather’s oldest sister, my great-aunt Belle Harris, was the first woman to be imprisoned during the polygamy prosecutions. In 1883, when she was twenty-two years of age, she refused to testify before a grand jury investigating polygamy charges against her husband. Sentenced for contempt, she served three and one-half months in the Utah territorial penitentiary.

The Compelling Governmental Interest Test Must Be Restored

The conflict between individual rights to freely worship God and government attempts to regulate or interfere with religious practices remains today. For decades the United States Supreme Court adhered to the First Amendment guarantee of free exercise by requiring the state to demonstrate a “compelling governmental interest” before interference with religious freedom would be tolerated. This test struck an appropriate balance between the needs of government to establish rules for the orderly governance of our society and the rights of citizens not to be unduly restricted in their religious practices. In those instances where elected officials approved laws which interfered with a specific religious practice, they had to sustain the burden of justifying their action by identifying a compelling government reason or interest for doing so. They also had to demonstrate that they had interfered with the religious practice by the least restrictive means possible. The compelling governmental interest test provided an essential protection for the free exercise of religion. Such a protection is vital. There is nothing more private or personal than the relationship of an individual to his or her God. There is nothing more sacred to a religious person than the service or worship of God.

With the abandonment of the “compelling governmental interest” test in the case of Employment v. Smith, the Supreme Court has permitted any level of government to interfere with an individual’s religious practice or worship so long as it does so by a law of general applicability that is not seen as overtly targeting a specific religion.

This allows government a greatly increased latitude to restrict the free exercise of religion.

If past is prologue, the forces of local, state, and federal governmental power, now freed from the compelling governmental interest test, will increasingly interfere with the free exercise of religion. We fear that the end result will be a serious diminution of the religious freedom guaranteed by the United States Constitution.

You will hear from others today whose religious practices have already fallen victim to government interference under the Supreme Court’s new standard. They will demonstrate the detrimental effects of the Smith decision in a manner more powerful than I could. I wish to point out, however, that most of the court cases involving government interference with religious liberty involve religious practices that appear out of the ordinary to many. By their nature, elected officials are unlikely to pass ordinances, statutes, or laws that interfere with large mainstream religions whose adherents possess significant political power at the ballot box. But political power or impact must not be the measure of which religious practices can be forbidden by law.

The Bill of Rights protects principles, not constituencies. The worshippers who need its protections are the oppressed minorities, not the influential constituent elements of the majority. As a Latter-day Saint, I have a feeling for that principle. Although my church is now among the five largest churches in America, we were once an obscure and unpopular group whose members repeatedly fell victim to officially sanctioned persecution because of their religious beliefs and practices. We have special reason to call for Congress and the courts to reaffirm the principle that religious freedom must not be infringed unless this is clearly required by a “compelling governmental interest.”

When the Supreme Court determines that a right is guaranteed by the Constitution, it has routinely imposed the compelling governmental interest test to prevent undue official infringement of that right. It is nothing short of outrageous that the Supreme Court continues to apply this protection to words that cannot be found within the Constitution, such as the “right to privacy,” and yet has removed this protective standard from application to the express provision in the Constitution’s Bill of Rights that guarantees the free exercise of religion. The Constitution’s two express provisions on religion suggest that protection of religious freedom was to have a preferred position, but the Smith case has now consigned it to an inferior one. That mistake must be remedied, and H.R. 2797 is appropriate for that purpose.

Conclusion

Mr. Chairman, The Church of Jesus Christ of Latter-day Saints commends the sponsors of H.R. 2797, the Religious Freedom Restoration Act, for their recognition of the importance of the free exercise of religion to the freedom and well-being of our pluralistic society. Although we would prefer that the Supreme Court reverse the Smith case and restore the full constitutional dimensions of the First Amendment protection of freedom of religion, we believe that this statutory restoration of the “compelling governmental interest” standard is both a legitimate and a necessary response by the legislative branch to the degradation of religious freedom resulting from the Smith case. For Mormons, this legislation implements in federal law a vital principle of general application embodied in our church’s eleventh article of faith, written in 1842:

“We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”

Thank you, Mr. Chairman.

Not long after I began to teach law, an older professor asked me a challenging question about Latter-day Saints’ belief in the United States Constitution. Earlier in his career he had taught at the University of Utah College of Law. There he met many Latter-day Saint law students. “They all seemed to believe that the Constitution was divinely inspired,” he said, “but none of them could ever tell me what this meant or how it affected their interpretation of the Constitution.” I took that challenge personally, and I have pondered it for many years. 1

I hope I will not be thought immodest if I claim a special interest in the Constitution. As a lawyer and law professor for more than twenty years, I have studied the United States Constitution. As legal counsel, I helped draft the bill of rights for the Illinois constitutional convention of 1970. And for three and one-half years as a justice of the Utah Supreme Court I had the sworn duty to uphold and interpret the constitutions of the state of Utah and the United States. My conclusions draw upon those experiences and upon a lifetime of studying the scriptures and the teachings of the living prophets. My opinions on this subject are personal and do not represent a statement in behalf of The Church of Jesus Christ of Latter-day Saints.

Creation and Ratification

The United States Constitution was the first written constitution in the world. It has served Americans well, enhancing freedom and prosperity during the changed conditions of more than two hundred years. Frequently copied, it has become the United States’ most important export. After two centuries, every nation in the world except six have adopted written constitutions, 2 and the U.S. Constitution was a model for all of them. No wonder modern revelation says that God established the U.S. Constitution and that it “should be maintained for the rights and protection of all flesh, according to just and holy principles.” (D&C 101:77.)

George Washington was perhaps the first to use the word miracle in describing the drafting of the U.S. Constitution. In a 1788 letter to Lafayette, he said:

“It appears to me, then, little short of a miracle, that the delegates from so many different states (which states you know are also different from each other in their manners, circumstances, and prejudices) should unite in forming a system of national Government, so little liable to well-founded objections.” 3

It was a miracle. Consider the setting.

The thirteen colonies and three and one-half million Americans who had won independence from the British crown a few years earlier were badly divided on many fundamental issues. Some thought the colonies should reaffiliate with the British crown. Among the majority who favored continued independence, the most divisive issue was whether the United States should have a strong central government to replace the weak “league of friendship” established by the Articles of Confederation. Under the Confederation of 1781, there was no executive or judicial authority, and the national Congress had no power to tax or to regulate commerce. The thirteen states retained all their sovereignty, and the national government could do nothing without their approval. The Articles of Confederation could not be amended without the unanimous approval of all the states, and every effort to strengthen this loose confederation had failed.

Congress could not even protect itself. In July 1783, an armed mob of former Revolutionary War soldiers seeking back wages threatened to take Congress hostage at its meeting in Philadelphia. When Pennsylvania declined to provide militia to protect them, the congressmen fled. Thereafter Congress was a laughingstock, wandering from city to city.

Unless America could adopt a central government with sufficient authority to function as a nation, the thirteen states would remain a group of insignificant, feuding little nations united by nothing more than geography and forever vulnerable to the impositions of aggressive foreign powers. No wonder the first purpose stated in the preamble of the new United States Constitution was “to form a more perfect union.”

The Constitution had its origin in a resolution by which the relatively powerless Congress called delegates to a convention to discuss amendments to the Articles of Confederation. This convention was promoted by James Madison and Alexander Hamilton, two farsighted young statesmen still in their thirties, who favored a strong national government. They persuaded a reluctant George Washington to attend and then used his influence in a letter-writing campaign to encourage participation by all the states. The convention was held in Philadelphia, whose population of a little over 40,000 made it the largest city in the thirteen states.

As the delegates assembled, there were ominous signs of disunity. It was not until eleven days after the scheduled beginning of the convention that enough states were represented to form a quorum. New Hampshire’s delegation arrived more than two months late because the state had not provided them travel money. No delegates ever came from Rhode Island.

Economically and politically, the country was alarmingly weak. The states were in a paralyzing depression. Everyone was in debt. The national treasury was empty. Inflation was rampant. The various currencies were nearly worthless. The trade deficit was staggering. Rebelling against their inclusion in New York State, prominent citizens of Vermont had already entered into negotiations to rejoin the British crown. In the western territory, Kentucky leaders were speaking openly about turning from the union and forming alliances with the Old World.

Instead of reacting timidly because of disunity and weakness, the delegates boldly ignored the terms of their invitation to amend the Articles of Confederation and instead set out to write an entirely new constitution. They were conscious of their place in history. For millennia the world’s people had been ruled by kings or tyrants. Now a group of colonies had won independence from a king and their representatives had the unique opportunity of establishing a constitutional government Abraham Lincoln would later describe as “of the people, by the people, and for the people.”

The delegates faced staggering obstacles. The leaders in the thirteen states were deeply divided on the extent to which the states would cede any power to a national government. If there was to be a strong central government, there were seemingly irresolvable differences on how to allocate the ingredients of national power between large and small states. As to the nature of the national executive, some wanted to copy the British parliamentary system. At least one delegate even favored the adoption of a monarchy. Divisions over slavery could well have prevented any agreement on other issues. There were 600,000 black slaves in the thirteen states, and slavery was essential in the view of some delegates and repulsive to many others.

Deeming secrecy essential to the success of their venture, the delegates spent over three months in secret sessions, faithfully observing their agreement that no one would speak outside the meeting room on the progress of their work. They were fearful that if their debates were reported to the people before the entire document was ready for submission, the opposition would unite to kill the effort before it was born. This type of proceeding would obviously be impossible today. There is irony in the fact that a constitution which protects the people’s “right to know” was written under a set of ground rules that its present beneficiaries would not tolerate.

It took the delegates seven weeks of debate to resolve the question of how the large and small states would be represented in the national congress. The Great Compromise provided a senate with equal representation for each state, and a lower house in which representation was apportioned according to the whole population of free persons in the state, plus three-fifths of the slaves. The vote on this pivotal issue was five states in favor and four against; other states did not vote, either because no delegates were present or because their delegation was divided. Upon that fragile base, the delegates went forward to consider other issues, including the nature of the executive and judicial branches, and whether the document should include a bill of rights.

It is remarkable that the delegates were able to put aside their narrow sectional loyalties to agree on a strong central government. Timely events were persuasive of the need: the delegates’ memories of the national humiliation when Congress was chased out of Philadelphia by a mob, the recent challenge of Shay’s rebellion against Massachusetts farm foreclosures, and the frightening prospect that northern and western areas would be drawn back into the orbit of European power.

The success of the convention was attributable in large part to the remarkable intelligence, wisdom, and unselfishness of the delegates. As James Madison wrote in the preface to his notes on the Constitutional Convention:

“There never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them.” 4 Truly, the U.S. Constitution was established “by the hands of wise men whom [the Lord] raised up unto this very purpose.” (D&C 101:80.)

The drafting of the Constitution was only the beginning. By its terms it would not go into effect until ratified by conventions in nine states. But if the nation was to be united and strong, the new Constitution had to be ratified by the key states of Virginia and New York, where the opposition was particularly strong. The extent of opposition coming out of the convention is suggested by the fact that of seventy-four appointed delegates, only fifty-five participated in the convention, and only thirty-nine of these signed the completed document.

It was nine months before nine states had ratified, and the last of the key states was not included until a month later, when the New York convention ratified by a vote of thirty to twenty-seven. To the “miracle of Philadelphia” one must therefore add “the miracle of ratification.”

Ratification probably could not have been secured without a commitment to add a written bill of rights. The first ten amendments, which included the Bill of Rights, were ratified a little over three years after the Constitution itself.

That the Constitution was ratified is largely attributable to the fact that the principal leaders in the states were willing to vote for a document that failed to embody every one of their preferences. For example, influential Thomas Jefferson, who was in Paris negotiating a treaty and therefore did not serve as a delegate, felt strongly that a bill of rights should have been included in the original Constitution. But Jefferson still supported the Constitution because he felt it was the best available. Benjamin Franklin stated that view in these words:

“When you assemble a number of men to have the advantage over their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does. … The opinions I have had of its errors, I sacrifice to the public good.” 5

In other words, one should not expect perfection—one certainly should not expect all of his personal preferences—in a document that must represent a consensus. One should not sulk over a representative body’s failure to attain perfection. Americans are well advised to support the best that can be obtained in the circumstances that prevail. That is sound advice not only for the drafting of a constitution but also for the adoption and administration of laws under it.

Inspiration

It was a miracle that the Constitution could be drafted and ratified. But what is there in the text of the Constitution that is divinely inspired?

Reverence for the United States Constitution is so great that sometimes individuals speak as if its every word and phrase had the same standing as scripture. Personally, I have never considered it necessary to defend every line of the Constitution as scriptural. For example, I find nothing scriptural in the compromise on slavery or the minimum age or years of citizenship for congressmen, senators, or the president. President J. Reuben Clark, who referred to the Constitution as “part of my religion,” 6 also said that it was not part of his belief or the doctrine of the Church that the Constitution was a “fully grown document.” “On the contrary,” he said, “We believe it must grow and develop to meet the changing needs of an advancing world.” 7

That was also the attitude of the Prophet Joseph Smith. He faulted the Constitution for not being “broad enough to cover the whole ground.” In an obvious reference to the national government’s lack of power to intervene when the state of Missouri used its militia to expel the Latter-day Saints from their lands, Joseph Smith said,

“Its sentiments are good, but it provides no means of enforcing them. … Under its provision, a man or a people who are able to protect themselves can get along well enough; but those who have the misfortune to be weak or unpopular are left to the merciless rage of popular fury.” 8 This omission of national power to protect citizens against state action to deprive them of constitutional rights was remedied in the Fourteenth Amendment, adopted just after the Civil War.

I see divine inspiration in what President J. Reuben Clark called the “great fundamentals” of the Constitution. In his many talks on the Constitution, he always praised three fundamentals: (a) the separation of powers into three independent branches of government in a federal system; (b) the essential freedoms of speech, press, and religion embodied in the Bill of Rights; and (c) the equality of all men before the law. I concur in these three, but I add two more. On my list there are five great fundamentals.

1. Separation of powers. The idea of separation of powers was at least a century old. The English Parliament achieved an initial separation of legislative and executive authority when they wrested certain powers from the king in the revolution of 1688. The concept of separation of powers became well established in the American colonies. State constitutions adopted during the Revolution distinguished between the executive, legislative, and judicial functions. Thus, a document commenting on the proposed Massachusetts Constitution of 1778, speaks familiarly of the principle “that the legislative, judicial, and executive powers are to be lodged in different hands, that each branch is to be independent, and further, to be so balanced, and be able to exert such checks upon the others, as will preserve it from dependence on, or a union with them.” 9

Thus, we see that the inspiration on the idea of separation of powers came long before the U.S. Constitutional Convention. The inspiration in the convention was in its original and remarkably successful adaptation of the idea of separation of powers to the practical needs of a national government. The delegates found just the right combination to assure the integrity of each branch, appropriately checked and balanced with the others. As President Clark said:

“It is this union of independence and dependence of these branches—legislative, executive and judicial—and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. … As I see it, it was here that the divine inspiration came. It was truly a miracle.” 10

2. A written bill of rights. This second great fundamental came by amendment, but I think Americans all look upon the Bill of Rights as part of the inspired work of the Founding Fathers. The idea of a bill of rights was not new. Once again, the inspiration was in the brilliant, practical implementation of preexisting principles. Almost six hundred years earlier, King John had subscribed the Magna Charta, which contained a written guarantee of some rights for certain of his subjects. The English Parliament had guaranteed individual rights against royal power in the English Bill of Rights of 1689. Even more recently, some of the charters used in the establishment of the American colonies had written guarantees of liberties and privileges, with which the delegates were familiar.

I have always felt that the United States Constitution’s closest approach to scriptural stature is in the phrasing of our Bill of Rights. Without the free exercise of religion, America could not have served as the host nation for the restoration of the gospel, which began just three decades after the Bill of Rights was ratified. I also see scriptural stature in the concept and wording of the freedoms of speech and press, the right to be secure against unreasonable searches and seizures, the requirements that there must be probable cause for an arrest and that accused persons must have a speedy and public trial by an impartial jury, and the guarantee that a person will not be deprived of life, liberty, or property without due process of law. President Ezra Taft Benson has said, “Reason, necessity, tradition, and religious conviction all lead me to accept the divine origin of these rights.” 11

The Declaration of Independence had posited these truths to be “self-evident,” that all men “are endowed by their Creator with certain inalienable Rights,” and that governments are instituted “to secure these Rights.” This inspired Constitution was established to provide a practical guarantee of these God-given rights (see D&C 101:77), and the language implementing that godly objective is scriptural to me.

3. Division of powers. Another inspired fundamental of the U.S. Constitution is its federal system, which divides government powers between the nation and the various states. Unlike the inspired adaptations mentioned earlier, this division of sovereignty was unprecedented in theory or practice. In a day when it is fashionable to assume that the government has the power and means to right every wrong, we should remember that the U.S. Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” 12 I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government.

4. Popular sovereignty. Perhaps the most important of the great fundamentals of the inspired Constitution is the principle of popular sovereignty: The people are the source of government power. Along with many religious people, Latter-day Saints affirm that God gave the power to the people, and the people consented to a constitution that delegated certain powers to the government. Sovereignty is not inherent in a state or nation just because it has the power that comes from force of arms. Sovereignty does not come from the divine right of a king, who grants his subjects such power as he pleases or is forced to concede, as in Magna Charta. The sovereign power is in the people. I believe this is one of the great meanings in the revelation which tells us that God established the Constitution of the United States,

“That every man may act … according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.

“Therefore, it is not right that any man should be in bondage one to another.

“And for this purpose have I established the Constitution of this land.” (D&C 101:78–80.)

In other words, the most desirable condition for the effective exercise of God-given moral agency is a condition of maximum freedom and responsibility. In this condition men are accountable for their own sins and cannot blame their political conditions on their bondage to a king or a tyrant. This condition is achieved when the people are sovereign, as they are under the Constitution God established in the United States. From this it follows that the most important words in the United States Constitution are the words in the preamble: “We, the people of the United States … do ordain and establish this Constitution.”

President Ezra Taft Benson expressed the fundamental principle of popular sovereignty when he said, “We [the people] are superior to government and should remain master over it, not the other way around.” 13 The Book of Mormon explains that principle in these words:

“An unrighteous king doth pervert the ways of all righteousness. …

“Therefore, choose you by the voice of this people, judges, that ye may be judged according to the laws. …

“Now it is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law—to do your business by the voice of the people.” (Mosiah 29:23–26.)

Popular sovereignty necessarily implies popular responsibility. Instead of blaming their troubles on a king or other sovereign, all citizens must share the burdens and responsibilities of governing. As the Book of Mormon teaches, “The burden should come upon all the people, that every man might bear his part.” (Mosiah 29:34.)

President Clark’s third great fundamental was the equality of all men before the law. I believe that to be a corollary of popular sovereignty. When power comes from the people, there is no legitimacy in legal castes or classes or in failing to provide all citizens the equal protection of the laws.

The delegates to the Constitutional Convention did not originate the idea of popular sovereignty, since they lived in a century when many philosophers had argued that political power originated in a social contract. But the United States Constitution provided the first implementation of this principle. After two centuries in which Americans may have taken popular sovereignty for granted, it is helpful to be reminded of the difficulties in that pioneering effort.

To begin with, a direct democracy was impractical for a country of four million people and about a half million square miles. As a result, the delegates had to design the structure of a constitutional, representative democracy, what they called “a Republican Form of Government.” 14

The delegates also had to resolve whether a constitution adopted by popular sovereignty could be amended, and if so, how.

Finally, the delegates had to decide how minority rights could be protected when the government was, by definition, controlled by the majority of the sovereign people.

A government based on popular sovereignty must be responsive to the people, but it must also be stable or it cannot govern. A constitution must therefore give government the power to withstand the cries of a majority of the people in the short run, though it must obviously be subject to their direction in the long run.

Without some government stability against an outraged majority, government could not protect minority rights. As President Clark declared:

“The Constitution was framed in order to protect minorities. That is the purpose of written constitutions. In order that the minorities might be protected in the matter of amendments under our Constitution, the Lord required that the amendments should be made only through the operation of very large majorities—two-thirds for action in the Senate, and three-fourths as among the states. This is the inspired, prescribed order.” 15

The delegates to the Constitutional Convention achieved the required balance between popular sovereignty and stability through a power of amendment that was ultimately available but deliberately slow. Only in this way could the government have the certainty of stability, the protection of minority rights, and the potential of change, all at the same time.

To summarize, I see divine inspiration in these four great fundamentals of the U.S. Constitution:

• the separation of powers in the three branches of government;

• the Bill of Rights;

• the division of powers between the states and the federal government; and

• the application of popular sovereignty.

5. The rule of law and not of men. Further, there is divine inspiration in the fundamental underlying premise of this whole constitutional order. All the blessings enjoyed under the United States Constitution are dependent upon the rule of law. That is why President J. Reuben Clark said, “Our allegiance run[s] to the Constitution and to the principles which it embodies, and not to individuals.” 16 The rule of law is the basis of liberty.

As the Lord declared in modern revelation, constitutional laws are justifiable before him, “and the law also maketh you free.” (D&C 98:5–8.) The self-control by which citizens subject themselves to law strengthens the freedom of all citizens and honors the divinely inspired Constitution.

Citizen Responsibilities

U.S. citizens have an inspired Constitution, and therefore, what? Does the belief that the U.S. Constitution is divinely inspired affect citizens’ behavior toward law and government? It should and it does.

U.S. citizens should follow the First Presidency’s counsel to study the Constitution. 17 They should be familiar with its great fundamentals: the separation of powers, the individual guarantees in the Bill of Rights, the structure of federalism, the sovereignty of the people, and the principles of the rule of the law. They should oppose any infringement of these inspired fundamentals.

They should be law-abiding citizens, supportive of national, state, and local governments. The twelfth Article of Faith declares:

“We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.”

The Church’s official declaration of belief states:

“We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them. …

“We believe that all men are bound to sustain and uphold the respective governments in which they reside.” (D&C 134:1, 5.)

Those who enjoy the blessings of liberty under a divinely inspired constitution should promote morality, and they should practice what the Founding Fathers called “civic virtue.” In his address on the U.S. Constitution, President Ezra Taft Benson quoted this important observation by John Adams, the second president of the United States:

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” 18

Similarly, James Madison, who is known as the “Father of the Constitution,” stated his assumption that there had to be “sufficient virtue among men for self-government.” He argued in the Federalist Papers that “republican government presupposes the existence of these qualities in a higher degree than any other form.” 19

It is part of our civic duty to be moral in our conduct toward all people. There is no place in responsible citizenship for dishonesty or deceit or for willful law breaking of any kind. We believe with the author of Proverbs that “righteousness exalteth a nation: but sin is a reproach to any people.” (Prov. 14:34.) The personal righteousness of citizens will strengthen a nation more than the force of its arms.

Citizens should also be practitioners of civic virtue in their conduct toward government. They should be ever willing to fulfill the duties of citizenship. This includes compulsory duties like military service and the numerous voluntary actions they must take if they are to preserve the principle of limited government through citizen self-reliance. For example, since U.S. citizens value the right of trial by jury, they must be willing to serve on juries, even those involving unsavory subject matter. Citizens who favor morality cannot leave the enforcement of moral laws to jurors who oppose them.

The single word that best describes a fulfillment of the duties of civic virtue is patriotism. Citizens should be patriotic. My favorite prescription for patriotism is that of Adlai Stevenson:

“What do we mean by patriotism in the context of our times? … A patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.” 20

I close with a poetic prayer. It is familiar to everyone in the United States, because U.S. citizens sing it in one of their loveliest hymns. It expresses gratitude to God for liberty, and it voices a prayer that he will continue to bless them with the holy light of freedom:

Our fathers’ God, to thee,
Author of liberty,
To thee we sing;
Long may our land be bright
With freedom’s holy light.
Protect us by thy might,
Great God, our King! 21