Black Souls Matter: An Originalist Framework for Individual Constitutional Protection Against Theologically-Justified White Supremacy within Christian Institutions

• Pages: 193-226
• Date: 01 July 2022
• Published date: 01 July 2022
• Author: Colin Rivera
• Subject Matter: Derecho Civil

Black Souls Matter: An Originalist Framework for

Individual Constitutional Protection Against

Theologically-Justif‌ied White Supremacy within

Christian Institutions

COLIN RIVERA*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

I. GENERAL, INSTITUTIONAL, AND INDIVIDUAL RELIGIOUS FREEDOM . . . . . 196

A. Religious Freedom Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 196

B. Institutional Christian Religious Freedom . . . . . . . . . . . . . . . . . 198

C. Individual Christian Religious Freedom . . . . . . . . . . . . . . . . . . 199

II. WHEN INSTITUTIONAL RELIGIOUS FREEDOM CLASHES WITH THE

INDIVIDUAL RELIGIOUS FREEDOM OF AN INSTITUTION’S MEMBERS . . . . . 200

A. American Christianity and White Supremacy . . . . . . . . . . . . . . 202

B. The Church of Jesus Christ of Latter-day Saints’ Anti-Black Ban on

Participation in Doctrinally-Essential Religious Rites as an Example

of Religiously-Justif‌ied Institutional White Supremacy . . . . . . . . . 203

1. White Supremacy and Mormonism . . . . . . . . . . . . . . . . 203

2. Mormonism’s Anti-Black Ban on Participation in

Doctrinally Essential Religious Rites . . . . . . . . . . . . . . . . 205

3. The Anti-Black Ban’s History, and Transition from Policy

to Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

4. No Apparent Legal Solutions . . . . . . . . . . . . . . . . . . . . . 209

C. Why Finding a Legal Solution to Theologically-Justif‌ied White

Supremacy within Christian Institutions Still Matters . . . . . . . . . 211

* J.D., Georgetown University Law Center, 2023. Editor-in-Chief, Georgetown Journal of Law and

Modern Critical Race Perspectives, 2022-23. I am tremendously grateful to the mighty and passionate staff at

MCRP for their diligent work in helping this piece be ready for publication. Additionally, this work could

not have been possible without the mentorship of Professor’s Gary Peller, Naomi Mezey, Jessica Wherry,

Kevin Tobia, and David Luban, as well as particular help from Ananya Gill Sinha, Mel Neal, Lolade

Akintunde, Ashlei Anderson, Katie Parker, Maggie Xu, Professor Patrick Mason, and my incredible wife

Karen Zelnick. © 2023, Colin Rivera.

193

1. Institutional Religiously Justif‌ied White Supremacy’s Lasting

and Damaging Effects . . . . . . . . . . . . . . . . . . . . . . . . . . 211

2. Greater Equity Can be Achieved Through Reducing the

Immense Power Imbalances Between Institutions and

Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

3. Religious Freedom is Highly Vulnerable to Bad Faith Abuse . . 216

4. A Critical Race View of Individual Black Religious Freedom

Demands Greater Equity . . . . . . . . . . . . . . . . . . . . . . . . 217

III. A MODERN ORIGINALIST SOLUTION: CONSTITUTIONALLY STRENGTHENING

INDIVIDUAL OVER INSTITUTIONAL RELIGIOUS FREEDOM. . . . . . . . . . . . 218

A. Modern Originalism’s Solution . . . . . . . . . . . . . . . . . . . . . . . . 219

1. Modern Originalism . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

2. Constitutionally Privileging Individual over Institutional

Religious Freedom Through Balkin’s Originalism . . . . . . 220

a. The Constitutional Principle of Protecting of Individual

Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

b. The Constitutional Principle of Preventing Government

Interference with Private Interests . . . . . . . . . . . . . . . 224

B. The Administrability of Balkin’s Originalism as Potential Recourse

for Victims of Religious White Supremacy . . . . . . . . . . . . . . . . . 225

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

INTRODUCTION

The First Amendment promises freedom of religion for all,

1

including those who

incorporate white supremacy into their Christian theology.

2

Between the 1850s and

1978, the Church of Jesus Christ of Latter-day Saints (“the Church”), otherwise

known as the Mormon Church, excluded members of African heritage from receiv-

ing full religious rites, privileges, and spiritual advancement (“the Anti-Black Ban”).

3

Although the Church rescinded the Anti-Black Ban in 1978,

4

the pressure to do so

1. U.S. CONST. amend. I. (“Congress shall make no law respecting an establishment of religion, or prohib-

iting the free exercise thereof”).

2. Peterson v. Wilmur Commc’ns, Inc., 205 F. Supp. 2d 1014, 1023 (E.D. Wis. 2002) (holding that a

belief system heavily infused with white supremacist beliefs is a religion).

3. JOANNA BROOKS, MORMONISM AND WHITE SUPREMACY: AMERICAN RELIGION AND THE PROBLEM

OF RACIAL INNOCENCE 11 (2020).

4. Id.

194 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 14:193

was generally social rather than legal or doctrinal.

5

Over the last several decades, the

increasingly conservative Supreme Court has demonstrated that in battles between

its religious freedom and anti-discrimination jurisprudence, it will almost always side

with the former.

6

The Court’s conservatism has left little to no recourse for individu-

als whose personal worship is the target of theologically-justif‌ied institutional white

supremacy. Nor is there an apparent solution for Black people facing racism from

other church members racism that could have been addressed by the law if the law

prevented acts of institutional white supremacy like the Anti-Black Ban in the f‌irst

place. Is privileging institutional religious freedom above all else, including individ-

ual religious freedom, essential to preserving true religious liberty? What about the

religious liberty of racial and ethnic minorities to worship as they see f‌it without

being subjected to institutional white supremacy? Should Christian institutions be

able to racially subjugate people in the name of religious liberty? How can we prevent

religious freedom from being weaponized against people of color in bad faith? In

exploring the answer to the tension between the constitutional religious freedom of

institutions and the individual religious freedom of the members of such institutions,

I offer the Church’s Anti-Black Ban as a historical and profoundly compelling exam-

ple of a religious institution imposing theologically-justif‌ied white supremacy on its

Black members.

This Article argues that jurists should view the prevention of theologically-justif‌ied

institutional white supremacy as a clash between two robust religious freedoms,

requiring the Court to favor one over the other, rather than as a question of whether

the Court is infringing upon freedom of religion at all. Because the Supreme Court

currently leans so far towards originalism,

7

Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, Harv. L.

Today (Nov. 17, 2015), http://today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation.

this Article puts forward an originalist

argument that individual freedoms should prevail. Specif‌ically, this Article argues

that Jack Balkin’s principle-based originalism supports an interpretation of the First

Amendment’s religion clauses that would prioritize protecting an individual wor-

shiper’s right to exercise their religious convictions, free from racial discrimination,

over a religious institution’s right to racially discriminate against said worshiper in

the name of religion, such as in the case of the Church’s Anti-Black Ban.

Part I of this Article outlines the current state of religious freedom jurisprudence,

in regards to both institutional, and individual religious freedom. In Part II, I explain

the nature of clashes within a religion between an institution and its individual mem-

bers and discuss the Church’s Anti-Black Ban as an example of such a clash that

facilitated white supremacy. Finally, in Part III, I lay out my main argument, offering

Balkin’s originalism as a valid and effective way to empower individual victims to

5. Id. (explaining that it was public protests and internal pressure tied to the Church’s growth in Brazil

where Blackness was viewed differently to how it is viewed in North America).

6. See e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000) (holding that discrimination based on

sexual orientation is not a compelling enough government interest to prevent a religious institution from

withholding membership from certain people); Corp. of Presiding Bishop of Church of Jesus Christ of

Latter-day Saints v. Amos, 483 U.S. 327, 336 (1987) (holding that religious organizations can discriminate in

their employment practices as long as doing so serves their religious goals).

7.

2022] BLACK SOULS MATTER 195