It's About the Land.

Eric Michael Mazur, The Americanization of Religious Minorities: Confronting the Constitutional Order. Baltimore: Johns Hopkins University Press, 1999). 196pp. $38.00 (cloth).

For anyone interested in the history of religious freedom in the United States this text warrants significant consideration. In its modest length and clear expression, it provides substantive analysis of the conflict between the first amendment's promise of free religious exercise and the demands of conformity to the dominant religious culture as expressed in the instrumentalities of state and federal government. To illuminate this tension and to identify its resolution, Dr. Mazur trains his historical attention on the fates of three religious minorities in their distinctive bids to realize a religious freedom that challenged the sensibilities of mainline Protestant Christianity and the political order informed by it.

Focusing on the experience of the Jehovah's Witnesses, the Latter Day Saints, and Native American religious traditions, Mazur chronicles the engagement of each religious minority as it encountered the dominant majority culture in the context of Constitutional litigation. Each minority community with its unique religious cosmology and self-identity in various ways conflicted with the majority order. To adjudicate the conflict, each community submitted itself to the determinative authority of the Constitution and its principle of religious freedom as interpreted and applied by the Supreme Court. Their submission, however, was by no means total or uniform. The adjudication of a particular religious issue, even if favorable to the minority community, did not necessarily signify that minority's uncritical acceptance of the Constitutional order as the ultimate authority for its sustaining guidance.

As persuasively presented by Dr. Mazur, the Jehovah's Witnesses represent a pattern of "constitutional congruence," a position which allowed that community to criticize and even condemn American society, all the while maintaining the integrity and centrality of its own sources of transcendent authority, by successfully translating the aims of the community into the language of the American Constitutional order. In one of the most remarkable histories of confrontational litigation by a religious minority, the Jehovah's Witnesses argued over fifty cases before the Supreme Court, around issues including flag-saluting, colportage, and conscientious objection. Unrelenting in its castigation of the fraud, corruption, and greed of earthly governments, including that of the United States, the Witnesses adroitly used the First Amendment of the Constitution to confront political authority, not out of any deep abiding faith in that document, but from a deliberate strategy that recognized how First Amendment values were congruent with the facilitation of their own evangelical interests.

Successfully translating their aims into the language of the American Constitutional order, the Jehovah's Witnesses framed their claims in terms of greater free speech rights, thus rendering their arguments understandable and even sympathetic to the judicial arbiters of the very order they criticized. So long as the Witnesses did not press their demands on the sole basis of an independent theocratic authority, but on the strategy of advancing greater free speech, the Supreme Court could render decisions which essentially granted them the freedom to coexist in congruence with and free from the relative coercion and interference of a governmental authority which they continued to characterize as flawed and imperfect. By crafting their concerns in majoritarian legal terms, the Jehovah's Witnesses successfully preserved their minority religious identity as critic of governmental power, and in that process even advanced the judicial sensitivity to expand protections afforded by the Constitution.

If the Jehovah's Witness experience represents a constructive negotiation by a religious minority in the broader dominant culture, the Church of Jesus Christ of Latter-day Saints (the Mormons) endured a more wrenching conversion of its autonomy before finding reconciliation with the demands of the political order. As presented by Dr. Mazur, the morality of plural marriage raised by the Mormons was more fundamentally a question of who controlled the authority to declare any such policy acceptable or not. Unlike the Witnesses, the Mormons held the Constitution of the United States to be inspired by God, the instrument that would permit true religious freedom and make possible the reestablishment of the lost teachings of the Mormon ancestors. For the Mormons then the Constitution was sacrosanct, and they fully expected the federal government to enforce its values of religious liberty when non-Mormons began persecuting the community during the 1830s in Ohio, Missouri, and Illinois. The government's failure to in tervene on their behalf, on grounds that it lacked appropriate jurisdiction over state actions, evoked a shift in Mormon belief that eventually escalated into an intractable confrontational stance as they sought refuge in the Great Basin region that would become Utah. Internally forced to differentiate between the holy foundation of the Constitution and the evil men who governed, the Mormon community set about the process of settlement with the expectation that their way of life could best be safeguarded by the formation and consolidation of their own state government which would eventually be incorporated into the union of other states. As they pursued that goal, polygamy became an established, if not universal, practice among Mormon men of authority within the community.

Dr. Mazur's telling of Congressional censure and federal hostility against both plural marriage and the clearly defined concentration of a potentially challenging alternative religious and civil authority in the Great Basin is dramatic historical writing. When the Supreme Court affirmed the constitutionality of the Morrill Act of 1862, which criminalized polygamy, and subsequent measures by Congress and the federal government to confiscate Mormon temples and other real estate holdings of the Church to terminate the practice, the Mormon community was forced to choose between loyalty to their unique social, political, economic, and religious independence as exemplified in the custom of plural marriage, and their very survival. Ultimately, the Mormon leadership opted for capitulation over annihilation and in 1890 renounced the practice, advising all Mormons to refrain from plural marriage as forbidden by the law of the land. Under continued federal suspicion, Mormon authorities in 1904 actually threatened to ex communicate any members of the Church who still might engage in the unlawful practice.

Unlike the Jehovah's Witnesses, the Mormons had embraced the American Constitution as a vehicle designed by God to ensure the establishment of the divine kingdom on earth. When the representative, executive, and judicial agencies of the Constitutional order not only failed to protect Mormon practice but actually moved against it, the religious minority was unable to convincingly articulate grounds of resistance that it conform to the majoritarian moral culture. Its ultimate submission on the matter of plural marriage was a traumatic conversion exacted from it to ensure the continued survival of its otherwise unchanged religious vision within the Constitutional order which it had embraced from its inception.

Because the Mormon capitulation permitted its survival within the dominant culture, Dr. Mazur chooses to identify its otherwise disastrous confrontation by the Constitutional order as ultimately resolved in the form of conversion to it. Turning to the experience of Native American religions in their particular valuation of land as sacred, he characterizes a stance of continuous conflict between this third religious minority and the Constitutional order as fundamentally distinct from the patterns of congruence and conversion exemplified by the Jehovah's Witnesses and Mormons, respectively. Deftly tracing the federal government's insistence on integrating Native Americans into the Constitutional order, Dr. Mazur notes a 1978 Supreme Court decision that clarified Indian reservations as part of the territory of the United States, emphasizing the possessory authority that the federal government exercised as holding ultimate title to Indian lands. From this vantage he briefly turns to consider challenges during th e 1980s brought by several tribes to preserve sacred sites from development schemes by federal and state authorities. With little factual detail and no legal analysis, Dr. Mazur mentions these cases as general evidence of unsympathetic federal judicial response to the fate of Native American claims to free exercise of religion as applied to land. He pays somewhat more attention to a slinilar claim that reached the Supreme Court in 1988. But given the significance of Northwest Indian Cemetery Protective Association v. Lyng, it is disappointing that Dr. Mazur does not turn his excellent historical elucidation to a more sustained treatment of the Court's ruling in that case. Had he engaged a more thorough discussion, he might have exposed a more exact and disturbing departure in the Court's jurisprudence that could have strengthened his overall thesis. The precise reading of the Court's ruling was not a determination that the government had a requisite "compelling interest" in the construction of a disputed logg ing road through land ancestrally used for prayer and ritual by the Yurok, Karok, and Tolowa peoples. Rather, the Court refused to follow its own procedural analysis and demand that the government assume the burden of demonstrating what its compelling interest was that could possibly justify the religious harm that the Court acknowledged would befall the tribal religious cultures. The Court in Lyng egregiously facilitated government destruction of tribal religion by indulging in an impermissive policy determination to protect the status of land as property and the discretion of the government as landlord to dispose of its property as it chose.

But even without this more detailed reading of the Lyng decision and the distortion of First Amendment religious exercise jurisprudence which it exposes, Dr. Mazur correctly characterizes the fundamental issue that persists in Native American religious freedom claims rooted in conceptions and treatment of land.

"It would seem that the foundation for authority in the American constitutional order -- vested in the possession and the control of land -- is threatened by the religious expressions of traditional Native American religions whose concepts of land challenge that authority.... Native American religious traditions expose the very real and tangible conflict that lies at the heart of the American constitutional order. The strength behind the Constitution is grounded in the control of the land, and any challenge to that control can be met with indirect, but powerful, resistance" (120--21). The reader recalls that the heavy-handed force exercised against the Mormon community over plural marriage was as much a matter of land as it was morality. The consolidated Mormon presence in the Great Basin, posing as the temporal foundation for the divine kingship on earth, represented a potential territorial threat that the sovereign jurisdiction of the federal government insisted on subduing. In that vein, as Dr. Mazur conc ludes his excellent study with a view to the future of religious minorities within the Constitutional order, he leaves no doubt that any groups that make institutional challenges grounded in assertions over land will have the least chance for a sympathetic hearing. Ultimate claims of territorial authority (like those of the Montana Freemen or the Republic of Texas movements) or attempts to dissociate from the jurisdiction and processes of the Constitutional order (as threatened by the Christian Identity movement) demonstrate the least capacity for congruence or conversion, and portend an engagement of serious conflict in which the exercise and final dominance by government power has been well defined by Mormon and Native American religious history.

BRIAN EDWARD BROWN teaches in the Department of Religious Studies, Iona College.