Mike Lee's Holy Constitution
If the Supreme Court soon recognizes some kind of Constitutional right to same-sex marriage, Utah's Senator Mike Lee saw it coming in 1921.
As Mr. Lee recounts in his book Our Lost Constitution: The Willful Subversion of America's Founding Document, a "toxic" interpretation of the Establishment Clause was born on the porch of a Catholic church rectory in Birmingham, Alabama.
There, a Southern Methodist minister shot and killed a Catholic priest who secretly married the minister's daughter to a Puerto Rican. Future Supreme Court justice and Ku Klux Klansman Hugo Black successfully defended the fellow Klansman minister.
It's hard not to consider this anti-Catholic episode when reading Black's analysis in Everson v. Board of Education, Mr. Lee tells me earlier this month from his Washington, D.C. office. In Black's majority opinion, he "camouflaged" his animus against Catholics and "made it appear legitimate" when he applied the Establishment Clause to the states.
"The impact is unmistakable," Lee laments. "There's no reason why the Federal courts should be delving into all kinds of intricate questions over whether a city council can put a crèche or a menorah outside of its chambers." Those are state issues, Lee says, and have "nothing to do with the establishment by Congress of a national religion."
Black's landmark opinion "has helped create a vigilant, hyper-secularism that has pervaded our government."
Which brings us back to the Supreme Court's upcoming decision whether states must license same-sex marriages. "What I worry most about is what's going to happen to religious freedom," Lee frets. When Justice Samuel Alito asked Solicitor General Donald Verrilli, Jr. what might happen to a religious university's tax-exempt status, for instance, if it continued to oppose same-sex marriage in spite of a Court ruling. "It's certainly going to be an issue," Verilli replied, "I don't deny that."
"That scares me to death," the Utah senator told me.
He says Verrilli's "troubling" response was "part of what convinced me to draft legislation that would prohibit the government from discriminating against any person or group of people who for religious reasons believe that marriage is between a man and a woman."
Mr. Lee says it's "probably more than likely than not" that the Court will recognize some kind of Constitutional right to gay marriage, but that would be a mistake.
"If the Court reaches that conclusion," Lee contends, "it is not a conclusion that finds justification in the text and history of the Constitution."
The junior senator from Utah is perhaps specially positioned to offer thoughts on the Constitution -- not just because he is the son of former Solicitor General Rex Lee and cites his father as a source of "encouragement," and not only because he worked as a clerk for Alito and served as an Assistant U.S. Attorney for the District of Utah.
When it comes to the Constitution, Mr. Lee's Mormon faith suggests that he is divinely inspired.
When asked if he thinks the Constitution is a sacred document, Lee says his view is "consistent with the doctrinal view: I believe that the Constitution was written by wise men, raised up by God to that very purpose." Mormons don't necessarily "put the Constitution on par with Scripture; it's not a canonical text that contains religious doctrine. But it is a special document that needs to be revered."
It's a belief Lee learned from an early age. "It was nothing unusual to talk about the Constitution around the dinner table, or running errands, or working in the yard," Lee remembers his upbringing. "Our faith was -- I hesitate to say alongside the Constitution because I don't want to put them on the same platform -- but it was another thing that we discussed constantly in our home."
Mike Lee's "defining moment" came when he was called on a mission. "It's a refiner's fire. There's nothing else quite like it," Lee beams. During his time as a Mormon missionary in Texas along the lower Rio Grande valley, Lee learned how to communicate -- and defend -- the doctrines of his faith.
That would come in handy during Mitt Romney's 2012 presidential campaign when one Texas evangelical pastor denounced Mormonism as a "cult." Robert Jeffress, who meanwhile encouraged believers to vote for Texas Governor Rick Perry, told reporters "Every true, born again follower of Christ ought to embrace a Christian over a non-Christian."
Lee recoils at the thought. "I've never fully understood why some say Mormons aren't Christian." While Romney reliably avoids specific discussions about Mormon theology, Mr. Lee does not hesitate.
"It is demonstrably false to say that [Mormons are] anything other than Christians," says Lee.
Latter-day Saints believe in Christ, but the Church's cosmology might be one -- or three -- steps too far for some Christians. When it comes to the composition of the Trinity, Lee explains, "We regard them as separate distinct beings. It has never struck me as that big of a disagreement."
That might come as a surprise to Pope Francis, who Lee met in June 2014. "I expressed my belief in Jesus Christ to him, and he reciprocated." The Catholic Church had answered the question of whether a Mormon baptism was valid thirteen years earlier: "Negative."
But Lee would not be deterred. "If you want me to get into the doctrinal basis for it... If God the Father is in fact God the Father, and in the sense that Jesus Christ is His Son, that would imply separate beings. Intuitively, it makes sense."
Though the Mormon belief in three divine beings won't make sense to most Christians any time soon, another unique Latter-day doctrine might assist in the defense of an institution of present interest to the Supreme Court.
"I think Mormons will continue to be vocal on the topic of eternal marriage," Lee tells me. Latter-day Saints believe that marriages "sealed" in their temples are eternal. The idea that the family is forever has acted as a high barrier to divorce: for Mormons who marry in a temple, only six percent of them break up.
"When you see a relationship between a man and a woman as an eternal unit," Lee says, "it has a positive effect on a marriage. When they see it in that light, it gives them more motivation to keep working at it."
If Lee's Marriage and Religious Freedom Act is any indication, he is no less motivated.