IN MY PREVIOUS POST, I made it clear I find the way the LDS Church and its leaders, from the top down, are attempting to ramrod a massive temple into Fairview to be unethical and really quite silly. The threats of litigation made against the Town of Fairview follows a pattern we’ve seen with other temples, but the patterns at play go back much farther than our recent temple building spree. Chances are, you’ve heard the expression “might makes right,” but for LDS, the pattern is more akin to “right makes might.” Many LDS across the nearly 200 years of our story have acted without reasonable forethought, as if the consequences of their actions couldn’t possibly bring disappointment. (Think Independence, Far West, and Nauvoo.) The LDS belief that God is guiding his “one true church” through a modern prophet is so strong that it’s as if members expect God will give them the power to overcome all opposition under any condition. Hence, right makes might. Most recently, many local LDS members followed this pattern by swarming the Fairview Town Council meetings and plaguing the town’s mayor with thousands of emails. The message was clear from our Stake Presidents: the Church (therefore, God) wants the McKinney Temple built as planned on the church-owned lot adjacent to the Fairview meetinghouse. We swarmed and, of course, the town began to resent our arrogance. That’s the pattern. The question is, why is it so dang important to build this temple in this way and in this place? Why are we creating animosity when we could create cordiality?

I don’t think the Church actually gives a hoot where it puts this new north Texas temple. Some have said the Church is insisting on building in this location because it already owns the massive lot beside its meetinghouse. But when a church possesses $200+ billion, the fact it already owns a slice of land is inconsequential. Some suppose the Church wants the temple in a residential area so it can be seen, but the business area of Fairview is not only beautiful but set right next to a very busy north Texas highway. Others argue the 20 minute drive from Fairview to the Dallas Temple is a hardship, especially for teen drivers. But the youth only attend the temple as part of church group activities or with their families and, in either situation, they don’t drive themselves there. None of these assertions hold water. What the Church isn’t explaining is why it doesn’t accept the invitation of the town council to build a temple the size of the Dallas Temple on the lot it wants to use or the invitation to build the larger version in the business district. If the Church wanted a temple–if that was its goal–it would accept one of those two offers. I’m left to conclude that this isn’t about a temple. The church is after something else entirely, something even bigger than the proposed steeple.

But it is very much about Fairview. LDS should recall that, at the October 2022 General Conference, President Nelson announced a temple would be built in McKinney, Texas. Then it changed to Prosper, and now it’s the Town of Fairview. That looks like town shopping to me, not fulfilling a prophecy. I’d lay wages that Fairview was picked because someone in Salt Lake City perceives it as the town most likely to offer resistance. Yes, I’m suggesting Fairview, with its Dark Sky Ordinance and paternal-like efforts to create a country feel in the midst of Dallas’ urban sprawl, is in the Church’s crosshairs because a lawsuit by either the Church itself or hand-selected members with local standing to bring a lawsuit is exactly what the Church wants. Reasonable solutions by the mayor be damned.

Let’s talk about patterns again. Here’s a little history lesson. In 1875, Brigham Young selected George Reynolds, a polygamist convicted in the Utah Territory under the Morrill Anti-bigamy Act of 1862, to carry to the Supreme Court the argument that plural marriage is a protected freedom under the First Amendment’s free exercise clause. Young whole-heartedly taught that God had commanded plural marriage and, therefore, believed that, because the Mormons were obeying God by living it, the Supreme Court would vindicate them and declare plural marriage constitutional. Being right would bring might (or a victory) over the powerful federal government.

Of course, in Reynolds v. The United States, the Supreme Court upheld the Morrill Anti-bigamy Act and set a precedent that survives to this day. Essentially, the Court agreed that the First Amendment did, in fact, protect Reynold’s right to believe in plural marriage; however, it disagreed that the right to exercise that belief supersedes federal law. Chief Justice Morrison Waite explained: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” The decision shocked the Utah saints and gave governments police powers to oversee religious practice. 

Brigham Young had passed away by the time the Court ruled, but John Taylor, who was then the president of the Quorum of the Twelve, didn’t see the defeat as proof the Mormons weren’t in the right. The ruling may have overpowered the Church, but in the minds of its leaders, it couldn’t overpower God. The ruling did nothing to bring humility to the Mormons. This Supreme Court ruling was the true starting point of the Church’s convoluted path to ending mortal plural marriage, but the many twists and turns in that path–not to mention hidden closets and safe houses–demonstrates that the Mormon leadership and the faithful still believed that their right to practice plural marriage should’ve been protected by the U.S. Constitution.

What has changed? Today, the LDS church isn’t in a wrestle with criminal statutes but civil ones. Think gay marriage. Think last year’s SEC Order and the church’s obfuscating official response, which, taken together, sure looks like the “senior leadership” felt itself above SEC code. Think of all the recent tussles with local governments over zoning ordinances. Think of the way Dallin H. Oaks, the shrewdest legal mind to ever rise up to a high ranking church position, trotted around the country speaking to LDS audiences about how best to ensure religious liberty. It’s hard for me to imagine he doesn’t have a plan–and that plan needs a test case.

You see, the church attorney told the Fairview Town council that two laws demand it relent so the temple can be constructed as the Church wants: the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Texas Religious Freedom Restoration Act (TRFRA). In essence, RLUIPA is two-pronged: it protects religious institutions from discrimination under civil zoning laws and, secondly, protects the right of religious practice for incarcerated persons. TRFRA allows individuals to challenge laws made by governments when those laws impede religious practice. Interestingly, Pres. Oaks, the man destined by pattern to be the next president of the church, has his fingerprints on both laws. In 1991 when already a seasoned apostle, Oaks testified before the House and Senate committees in favor of the Religious Freedom Restoration Act (RFRA) and then he did the same in 1998 for RLUIPA. RFRA was passed but soon challenged and ruled unconstitutional. Over the next several years, 28 states passed copy-cat versions of the defeated federal RFRA, including Texas. Interestingly, RLUIPA was co-sponsored by Utah senator Orin Hatch, a devout Latter-day Saint. To date, the part of RLUIPA that applies to inmates has been challenged (Cutter v. Wilkinson, 2005) and ruled constitutional by the US Supreme Court. 

But there has been no test case brought to uphold the portion of RLUIPA that speaks to religious institutions and zoning laws. I’ve read that legal “scholars remain divided as to the constitutionality of provisions related to zoning” in RLUIPA. Therefore, it seems within the realm of possibility that Pres. Oaks hopes to see the Supreme Court measure the First Amendment free exercise clause against zoning (or civil) codes. I feel confident he thinks [his definition of] religious liberty shouldn’t be limited by any man made law. If such a case occurred and favored the Church, imagine the number of civil codes the Church could challenge–or potentially ignore. Imagine how it could benefit (especially financially) if Pres. Oaks found a path to ending civil code interference with religion. Churches could continue to ignore Obergefell v. Hodges without concern. It might wind up freeing churches from civil charges under the tax code, wherein the threshold is already lower than in criminal cases. The SEC codes may no longer apply. It seems plausible that Fairview is as hand-picked and orchestrated by Oaks as was the Reynolds case by Brigham Young.

I remind myself that Oaks helped fashion both RLUIPA and RFRA (and by extension TRFRA) so it would seem counterintuitive to think he’d want the zoning portion of RLUIPA challenged. If the ruling came down against the church as it did in Reynolds, he’d lose RLUIPA as a means to get what he wants on behalf of the Church. But the Supreme Court has never been as conservative and pro-religion as it is right now. To Pres. Oaks, this may seem like the best moment to demonstrate that right makes might, that God prevails, and that man’s codes are beneath God laws. 

Of course, this is all supposition on my part. I don’t know how or if it’d be possible to extend a favorable ruling on zoning codes to other types of civil code. I welcome attorneys with applicable experience to chime in. But I  just cannot, for the life of me, figure out another reason the church institution has shopped for a temple site, selected a town as strictly protected by ordinance as Fairview, and is now insisting the town council’s reasonable conditions stem from religious bigotry. I can’t understand why it doesn’t accept the offer of a CUP to build a smaller temple on its preferred site or to build the preferred large design in the town’s well-polished business district. Why would it destroy its missionary prospects and bring negative press to itself? Why would it groom local leaders and members to misrepresent the facts, claiming things like that the steeple height is vital to temple worship? Why would it do anything it’s doing now in the way it’s doing it unless the pay-off is potentially extraordinary?

Some think Fairview is about Pres. Nelson’s ego or legacy. I’m not one of them. This is about power. I think it’s about being right and forcefully proving it now, under the most conservative, religiously-inclined Supreme Court in history. And I hope Fairview fights like heaven and hell against the Church. Not because I dislike temples or the Church itself but because Fairview and/or its citizens have a shot at restoring humility to a set of religious leaders who seem to have forgotten their purpose is to minister to the people and to build bridges of unity through genuine kindness and love, not to build a portfolio.

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TO HEAR A LAWYERLY DISCUSSION OF THIS POST ON THE MORMONISH PODCAST, CLICK HERE and you’ll be taken to Ep193: Will Oaks Take a RLUIPA Lawsuit to the Supreme Court?

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