Excerpted From: Colin Rivera, Black Souls Matter: An Originalist Framework for Individual Constitutional Protection Against Theologically-justified White Supremacy Within Christian Institutions, 14 Georgetown Journal of Law & Modern Critical Race Perspectives 193 (Summer, 2022) (265 Footnotes) (Full Document)


ColinRiveraThe First Amendment promises freedom of religion for all, including those who incorporate white supremacy into their Christian theology. 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 receiving full religious rites, privileges, and spiritual advancement (“the Anti-Black Ban”). Although the Church rescinded the Anti-Black Ban in 1978, the pressure to do so was generally social rather than legal or doctrinal. 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. The Court's conservatism has left little to no recourse for individuals 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 individual 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 example 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, 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 worshiper'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 members 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 constitutionally challenge theologically-justified white supremacy within Christian institutions.

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For the foregoing reasons, the First Amendment Free Exercise Clause's underdeterminacy supports the use of Balkin's originalism as a robust, constitutionally valid framework for strengthening an individual's right to exercise their religion without being subjected to theologically-justified white supremacy by any religious institutions they belong to, such as in the case of the Anti-Black Ban.

J.D., Georgetown University Law Center, 2023. Editor-in-Chief, Georgetown Journal of Law and Modern Critical Race Perspectives, 2022-23.