The Utah Domination Clause

December 2, 2003 | 2 comments

Under the Utah Constitution, “[t]here shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions.” The interesting part of this is the Domination and Interference Clauses. What might they mean?

In 1926, the Utah Supreme Court heard a case — Ewing v. Harries, 250 P. 1049 (Utah 1926) — in which a losing candidate for sheriff challenged the election of his opponent on the grounds that he won because of Mormon Church President Heber J. Grant’s endorsement. The court declined to grant any relief. The opinion is a bit unclear on the precise ground for its holding. (The plaintiff may have lost because of the somewhat esoteric issue of the proper equity jursidction of district courts.) However, the court does suggest that the Domination Clause does nothing more than restate prohibitions of the federal Establishment Clause, and that in any case it cannot be construed to place limits on the speech or franchise of citizens. (Note: a concurrence in the case suggests that the analysis of the Domination Clause is dicta).

As a textual matter, the Ewing court clearly seems to have it wrong. On its face the Establishment Clause is a prohibition on the passage of certain sorts of laws by the legislature. Even under a more expansive reading, the Establishment Clause only reaches state action. The Domination Clause, however, seems to be more like the Thirteenth Amendment to the federal constitution in that it reaches, on its face, non-state action. (It is unconstitutional for you personally to enslave some one else). The Domination Clause prohibits certain activities by churches. As a historical matter the Ewing court has also got to be wrong. Nothing could be clearer from the context of the 1896 Utah Constitutional Convention and the massive legal battles leading up to it, than the fact that the Domination Clause was aimed at the power of the Mormon Church in the state. I don’t see any interpretive reason why the clause should not be read as placing affirmative limits on the activities of the Mormon Church.

Of course, such a reading of the Domination Clause would arguably be unconstitutional under the Supreme Court’s current readings of the federal constitution’s Equal Protection, Free Exercise, and Establishment Clauses. Under Employment Division v. Smith and its progeny, laws targeting particular religious groups are presumptively unconstitutional. Under the much maligned Lemon test the Domination Clause would seem to present the risk of impermissible entanglement in the church’s internal affairs. Under Evans v. Romer the Domination Clause probably fails Equal Protection analysis in that it explicitly declares that a particular group may not lobby on an equal footing for special benefits with other groups much like the anti-homosexual affirmative action referendum at issue in Romer. To the extent that the Domination Clause properly read requires some restrictions on the speech of Mormon leaders or of the Mormon church, it also probably runs afoul of the federal Constitution’s Free Speech Clause.

One might try to rescue the Domination Clause with some sort of Ashwander analysis, ie ambigious statutes should be read so as to not violate the federal constitution. (Admittedly, this is not a statute, but I don’t see why state constitutions shouldn’t be subject to Ashwander style analysis). I have two problems with this. First, I don’t much like constitutional avoidance canons since they serve to create semi-constitutional penumbras and generally increase the level of ambiguity in constitutional law, which in my view is already plenty ambigiuos thank you. Second, even if we engage in Ashwander analysis, I don’t think that it should be used to rewrite the plain meaning of particular provisions. Courts, in my view, ought to just bite the bullet and declare the statute unconstitutional. (Note also: William Eskridge has demonstrated that as a political matter, reinterpretation rather than simply invalidating is likely to result in outcomes that could not command a legislative majority ex ante).

In short, I think that the Domination Clause should be read as prohibiting certain kinds of political activities by Mormons and the Mormon Church. I also think that it should be held unconstitutional.

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2 Responses to The Utah Domination Clause

  1. Adam Greenwood on December 2, 2003 at 4:57 pm

    Well-spoken, Nate. I only have a historical thought. Since the Federal government provided much less in the way of protection of minorities in the 1890s, might the Domination Clause have been directed to the protection of minority rights, the sorts of rights that nowadays are protected by the Feds? Just an aimless query.

    Also, is the Domination Clause un-amendable or can it be amended? If so, it seems that a dominant church should fear very little from it.

  2. Nathan on December 3, 2003 at 3:27 pm

    Perhaps you are right. However, I think that the scope of permissible state establishment was an open question in the last decade of the 19th century. Remember that the Establishment Clause wasn’t incorporated against the state until well into the 20th century.

    I think that there was a provision in the Utah Enabling Act which required the state perpetually outlaw polygamy and the union of Church and State. In other words, these provisions of the constitution were to be unamendable. Apparently losts of Western states were admitted to the Union under enabling acts that required that this or that provision of the new state’s constitution be unamendable. As I understand it, at some point early in the 20th century, the Supreme Court ruled that such provisions were unconstitutional. The theory was that the constitution requires that new states be admitted to the Union on an equal footing with the original thirteen. Since these guys didn’t have restrictions on their state constitutions, niether do the rest of us. A Caveat: It has been a while since I looked at this, so I could have it wrong…


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