When The Constitution Hangs By A Thread--Part Three

(Please note that this post is informed by views expressed in Part One and Part Two of the series.)

In Part 3 of this exploration, I would like to examine not the morality of Gay marriage, but the Constitutionality. At the heart of this issue lies the intention of the Constitution of the United States to "...secure the Blessings of Liberty to ourselves and our Posterity." (Preamble) The Church teaches that same-sex marriage is immoral and therefore should not be allowed. This religious argument is contrary to the First Amendment, which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" The framers thus sought to protect all Americans from the religious zealotry of a few. Some religious groups do not allow same-gender marriages, and others now recognize those marriages, even allowing clergy in local areas to perform same-gender marriage ceremonies. Should Americans be made to honor a conception of the Creator they don’t agree with? Of course not! This is why we have separation of Church and State.

The LDS Church has thrown a lot of time and money into supporting amendments to the federal and to state Constitutions which would preserve "traditional" marriage. An amendment to the U.S. Constitution is not feasible, as such decisions are clearly left up to the states to decide (Tenth Amendment). Besides, the blatant discrimination would violate Amendment Fourteen, which states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Such an Amendment is as laughable as the first proposed Constitutional Amendment on the subject of marriage (1912):

Congressional Record, 62nd Cong., 3rd sess., Dec. 11, 1912. Vol 49, p. 502

Mr. RODDENBERY. ( ... ) The resolution to which I make reference is one already introduced by me, providing for an amendment to the Constitution of the United States, with the usual resolving clause, and the article is as follows:

That intermarriage between negroes or persons of color and Caucasians or any other character of persons within the United States or any territory under their jurisdiction, is forever prohibited; and the term "negro or person of color," as here employed, shall be held to mean any and all persons of African descent or having any trace of African or negro blood.

This proposed amendment was unconstitutional because it denied one group of people the equal protection of law (Article Four, Amendment Nine and Fourteen).

The Federal Marriage Amendment, which is supported by the Church treads upon the same shaky ground. It's been very confusing to me to see how the Church feels free to step in to this "moral issue," even though it is one which threatens the Constitutional rights of a large group of people. Perhaps what bothers me the most is the wording of the proposed amendments to both Federal and various state Constitutions, which would define marriage in the United States as a union of one man and one woman. By supporting this, is the Church burning all of its bridges and more or less making a declaration that it will never again practice or support polygamy? It feels like a repudiation and denial of our past.

Though I don't believe the Church as an institution should directly interfere in these matters, it seems to me that if they were to support a course of action to reinforce the moral stand they have taken, they should look at how the issue was handled in Vermont. This state allows same-sex couples to enter into civil unions or domestic partnerships that provide some of the rights and responsibilities of marriage under state law. This protects the unique institution of conjugal marriage and does not force any religious group to change its theology or traditions, as well as preserving Constitutional rights.

Readers, do you think the Church's involvement in the proposed marriage amendments is supportive of the Constitution (our Heavenly Banner)? Do you think that by supporting marriage for one man and one woman the Church is repudiating plural marriage as an eternal principle?

My brethren and sisters, I hope that we will go home from this conference determined as a great body of people, to stand for law, order, righteousness, justice and peace on earth and good will among all men. I believe as the Prophet Joseph has written, that the day would come when there would be so much of disorder, of secret combinations taking the law into their own hands, tramping upon Constitutional rights and the liberties of the people, that the Constitution would hang as by a thread. Yes, but it will still hang, and there will be enough of good people, many who may not belong to our Church at all, people who have respect for law and for order, and for Constitutional rights, who will rally around with us and save the Constitution. I have never read that that thread would be cut. It will hang; the Constitution will abide and this civilization, that the Lord has caused to be built up, will stand fortified through the power of God, by putting from our hearts all that is evil, or that is wrong in the sight of God, by our living as we should live, acceptable to him. (Charles W. Nibley, Conference Report, October 1922, p. 40.)

It was Joseph Smith who has been quoted as having said that the time would come when the Constitution would hang as by a thread and at that time when it was thus in jeopardy, the elders of this Church would step forth and save it from destruction.
Why the elders of this Church? Would it be sacrilegious to paraphrase the words of the Apostle Peter, and say that the Constitution of the United States could be saved by the elders of this Church because this Church and this Church alone has the words of eternal life? We alone know by revelation as to how the Constitution came into being, and we, alone, know by revelation the destiny of this nation. The preservation of “life, liberty and the pursuit of happiness” can be guaranteed upon no other basis than upon a sincere faith and testimony of the divinity of these teachings. (Harold B. Lee, Conference Report, October 1952, p. 18.)

When The Constitution Hangs By A Thread--Part Two

Let us very quickly review two of the Constitutional Amendments which apply to the FLDS situation in Texas:

• First Amendment: addresses the rights of freedom of religion (prohibiting Congressional establishment of a religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.


• Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.

And here are two other Amendments which may very likely come into play before the trial has run its course:

• Fifth Amendment: among other things, forbids punishment without due process of law; and prohibits government from taking private property without just compensation.


• Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him.

These form part of the Bill of Rights, which consists of the first ten Amendments to the Constitution. In addition, I would like to provide a definition of statutory rape:

The criminal offense of statutory rape is committed when an adult sexually penetrates a person who, under the law, is incapable of consenting to sex. Overt force or threat need not be present. The age of consent and other differentials are to be determined by the state. In Texas, for instance, the age of consent is 17 and the minimum age of child is 14 with an age differential of 3 years; thus, individuals who are at least 14 years of age can legally engage in sexual activities if the defendant is less than 3 years older than the accuser. In addition, Texas stipulates an exception to their statutory rape laws if the adult and child are legally married during the time of commission of sexual conduct.

I must point out that the state has yet to uncover a single case of statutory rape. They are unable to show that any law has been broken. They rely on rumor, bigotry, and the assumption that all the FLDS are equally guilty. Perhaps there will be a few cases which could better, more cheaply, and with less psychological damage be investigated by observing the few girls between the ages of 14 and 17 in their own environment, with the men removed from the situation. On the other hand, those who have been following recent news reports are aware that

1. Texas CPS is violating the First Amendment by their disregard for the religious practices of the FLDS. Parents have said their children's copies of the Book of Mormon were removed because photographs of Jeffs were taped inside. Caseworkers also have said collections of sermons by Jeffs and other FLDS prophets need review before they are given to the children. There's a slight problem with this line of reasoning. Under the Constitution, parents can teach their children ANYTHING, with no exceptions. Even parents' teaching children to revere a convicted criminal is NOT grounds for terminating parental rights. Jesus was a convicted criminal in the eyes of the law. We don't terminate the parental rights of Christians.


2. Texas CPS was aware of the fraudulent nature of the phone call reporting abuse before entering the YFZ ranch and seizing children and evidence and desecrating their temple; violating the Fourth Amendment..


3. Texas officials have been directed to investigate the possibility of using the assets of the ranch to pay for the costs of the debacle (Fifth Amendment).


4. The Texas court system is punishing innocent parties who have no connection to statutory rape by considering the entire community of over 700 people as one household (Fifth and Sixth Amendments).

There are many, many other problems happening in this case. One wonders what the specific individual charges against each family could be that would keep them from their children until next April; and why issues such as homeschooling, location of residence, educational and vocational training and religious affiliation should be addressed in the plans for their reunification. The families were legally schooling their children, and all were self-supporting. None were found to be on government assistance.

Let us look at but one example. Louisa Barlow Jessop is age 22. She is one of the three girls who were found to be pregnant at the time of the seizure. CPS would not initially accept her legal documentation as proof of her age, but tried to classify her as a minor. She and her husband Dan are not polygamists. They have two children ages 2 and 3; and she gave birth to another on May 12. The couple is subject to the same plans as the other families, meaning the earliest they might hope to regain custody of their children is next April. Judge Thomas Gossett said a "wide loop" had been thrown around the FLDS community that might not fit all parents. If those allegations prove unfounded, "I'll be the first to apologize to you if it turns out you're not a person who has abused your child," the judge told Dan Jessop, who was in the courtroom. "There is no proof of abuse in your case. That gives you a leg up." I'm sure this apology appeases a family who has been separated for over 6 weeks already, and has no hope of being together or back in their home for at least a year. Reading case after case of similar stories breaks my heart.

Because this case is so very similar to the violations perpetrated against the Latter-day Saints in the nineteenth century, I find it incomprehensible that the Mormon Church has done nothing but distance themselves from the case. For a people who considers themselves the defenders of the Constitution, even the very ones who will save it when it is dangling by a thread, I cannot understand this position.

LDS attachment to the Constitution has been encouraged by an important oral tradition deriving from a statement attributed to Joseph Smith, according to which the Constitution would “hang by a thread” and be rescued, if at all, only with the help of the Saints. Church President John Taylor seemed to go further when he prophesied, “When the people shall have torn to shreds the Constitution of the United States the Elders of Israel will be found holding it up to the nations of the earth and proclaiming liberty and equal rights to all men” (Encyclopedia of Mormonism, Vol. 1, CONSTITUTION OF THE UNITED STATES OF AMERICA.)

The Prophet Joseph told us that he saw the day when even the Constitution of the United States would be torn and hang as by a thread. But, thank the Lord, the thread did not break. He saw the day when this people would be a balance of power to come to its defense. (Melvin J. Ballard, Conference Report, October 1928, p. 108)

I have two questions for my readers.

Do you agree that the way this case has been handled weakens the Constitution?

Do you feel that Joseph Smith's prophecy compels us to respond? If not, why? And if so, what can we do as an institution and/or individuals?

When The Constitution Hangs By A Thread--Part One

In a 1991 address, BYU President Rex E. Lee noted that compared to any other kind of law--including statutory, regulatory, or judge-made common law--constitutional law is very difficult to make or change.

"The central feature of the American Constitution is that with only one exception [the Thirteenth Amendment, prohibits slavery], its provisions are confined to limiting the powers of government... The Constitution contains some fairly obvious, though not always specific, prohibitions concerning what government--federal, state, or local--can do to its citizens. Some of the most prominent are protections for the criminally accused, such as the privilege against self-incrimination, protection against unreasonable searches and seizures, the right to counsel, and jury trial."

Lee goes on to discuss how spreading the powers of government among several separate entities and by making each a competitor with the others makes it less likely that these entities can gain the power to become oppressive. Without the Constitution and the rights that were guaranteed to us, the Mormons would not have survived as a people. This was the only nation and the only set of laws under which the Lord could have restored his Church.

Despite its strength, Latter-day Saints have been warned that one day the Constitution would be found in danger. The Prophet Joseph Smith thus prophesied in his famous "hanging by a thread" speech; and more than half of his successors repeated the admonition. I am well aware that Joseph's declaration has been quoted every time a tax increase comes along, or a failure to collect the garbage on time, or during a boundary dispute with a neighbor, as Lee so humorously puts it.

But today we have before us two Constitutional issues which deeply concern the Latter-day Saints. The first is the actions of the Texas legal system against the FLDS at the Yearning for Zion ranch. The second is the ruling of the California Supreme Court that a ban on gay marriage violates its constitution.

These two issues are of extreme importance to Mormons as they strike to the heart of the Proclamation on the Family. In the coming week I plan to discuss each issue, examine the Constitutional issues at stake, and probe the responsibilities of Mormons to engage these topics. I find it interesting that despite their relevance, the Church hierarchy has seen fit to combat one, while doing everything possible to distance themselves from the other.

How deeply should the Church be involved in these Texas and California legal battles? There are at least two perspectives. One view points out that the Church represents itself as non-partisan and should not throw its weight and the tithing money of its diverse membership into political issues. Another position is that the Church must take a stand on moral matters. The Joseph Smith prophecy is instructive in this regard:

"When the Constitution of the United States hangs, as it were, upon a single thread, they will have to call for the Mormon elders to save it from utter destruction; and they will step forth and do it." –Brigham Young, JD 2:182, February 18, 1855

"I believe that it is the destiny of the Latter-day Saints to support the Constitution of the United States. The Prophet Joseph Smith is alleged to have said—and I believe he did say it—that the day would come when the Constitution would hang as by a thread. But he saw that the thread did not break, thank the Lord, and that the Latter-day Saints would become a balance of power, with others, to preserve that Constitution. If there is—and there is one part of the Constitution hanging as by a thread today—where do the Latter-day Saints belong? Their place is to rally to the support of that Constitution, and maintain it and defend it and support it by their lives and by their vote. Let us not disappoint God nor his prophet. Our place is fixed." -Melvin J. Ballard, Conference Report, April 1933, p. 127.

What part will we have in the coming days and months, in supporting the Constitution of the United States? What form might this support take? Please comment with your opinion, and come back for Parts 2 and 3 of this discussion.