Missouri's 1838 extermination order and what Latter-day Saints endured

There is a sentence in the official records of the state of Missouri that no American should be able to read without a chill. It was written by a sitting governor, in an executive order, and it said that a religious group "must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace."

The group was the Latter-day Saints. The year was 1838. The order was never repealed by any court or legislature. It sat in the state's files, formally valid, for a hundred and thirty-eight years.

If you want to know what the First Amendment is for, start here. Not with the popular faiths, whose freedom nobody threatens. Start with the unpopular ones. A liberty that protects only the beliefs a majority already likes is a courtesy, not a right.

The terms and the claim

Religious liberty in the American tradition means two things: no government establishment of a favored church, and a free exercise of religion for everyone, including the unpopular.

Executive Order 44 is the official designation of Missouri Governor Lilburn Boggs's order of October 27, 1838.

My claim: the treatment of the Latter-day Saints in Missouri is a case study in what happens when majority hostility is allowed to write the law, and conservatives who care about religious liberty have a stake in remembering it, whether or not they share a word of the Latter-day Saint faith. I will not discuss theology. I will tell what the record shows.

Premise one: how it began

The Church of Jesus Christ of Latter-day Saints was organized by Joseph Smith in New York in 1830. Its members were drawn to Missouri, which the church's teachings identified as a place of gathering, and settled in Jackson County in the early 1830s. They were not welcomed. In 1833 mobs drove the Mormon settlers from Jackson County. They moved north, and the Missouri legislature created Caldwell County in 1836 as an arrangement to keep the peace, a county in which the Saints could settle with some security.

The peace did not hold. By 1838 the area was a tinderbox: disputes over land and votes, rhetoric on both sides, militias forming. I should be fair about the record, because history that omits the other side's grievances is propaganda. Some Latter-day Saints formed armed groups, and the Danites, a secret society organized in 1838, made threats against dissenters and others. In October of 1838 there was a skirmish at Crooked River, where a Missouri militia force clashed with a Latter-day Saint company and the Latter-day Saint captain David Patten died of his wounds. The non-Mormon residents, many of whom had also settled recently and been drawn into the conflict, had real fears, and some of the Saint's leadership said inflammatory things.

None of that is a defense of what followed. A government answers violence with law, not with a policy of ethnic and religious cleansing.

Premise two: the order

On October 27, 1838, Governor Boggs wrote to a general of the state militia and gave him an order. It said that the Mormons had made open war on the people of Missouri, and that they must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace.

Read it as a lawyer would. It is not a call to prosecute criminals. It is a directive aimed at a class of people, defined by religion, ordering the state's militia to use force against them as such. A prosecutor can charge individuals with crimes. A governor who orders a community "exterminated or driven" is claiming that membership in the faith is itself the offense.

The word he used is the word you think it is. Whatever Boggs meant by it, and some historians argue that "exterminated" had a more limited sense in that period's usage than it does now, the order's effect was the same: it gave militia units and vigilantes official cover to act.

Premise three: Haun's Mill

Three days later, on October 30, 1838, a militia force attacked a small Latter-day Saint settlement at Haun's Mill, in Caldwell County. The settlers had been trying to avoid a fight. The militiamen rode in and opened fire. Roughly seventeen Latter-day Saints, men and boys, were killed. Fourteen of the dead were slid into an unfinished dry well. The survivors were left to bury the dead and flee.

Nobody was ever convicted for it. Let that sit for a moment. The governor's order had been issued three days earlier. Most scholars find little evidence that the attackers had even heard of it, but the order had told every armed man in the state what officialdom thought of the Saints, and Missouri never prosecuted anyone for the killings.

In the following days the militia arrested Joseph Smith and other church leaders, who surrendered at Far West, and they were imprisoned, Smith at Liberty Jail, through the winter. The rest of the Latter-day Saint population, about ten thousand people, was forced to leave the state during the winter and spring of 1838 and 1839, in the cold, many of them with the clothes they had on. They crossed the Mississippi into Illinois, where they founded a city they named Nauvoo.

Property was lost. Farms and homes were abandoned, and crops were left in the field.

Premise four: the long road after

The story does not stop in Missouri. In Illinois the Latter-day Saints built Nauvoo into one of the largest cities in the state, and again aroused hostility. On June 27, 1844, a mob stormed the jail at Carthage, Illinois, where Joseph Smith and his brother Hyrum were being held, and killed them. In 1846, under Brigham Young, the Latter-day Saints began their exodus west, and in July of 1847 the first group entered the Salt Lake Valley, in what was then Mexican territory and soon became part of the United States.

A people who had been driven twice from American states went into the desert to found a society of their own. In Utah they built farms and canals and cities, a record of voluntary cooperation that anyone who admires self-reliance should respect.

Their troubles with the federal government were not over. The practice of plural marriage, which the church then taught, drew a nationwide political backlash. In 1862 Congress passed a law against bigamy in the territories. A Latter-day Saint named George Reynolds challenged it as a violation of his right to the free exercise of religion.

Premise five: Reynolds v. United States

Reynolds v. United States, decided in 1879, is the Supreme Court's first major encounter with the Free Exercise Clause. Chief Justice Waite wrote for the Court that Congress could make polygamy a crime. The reasoning is the thing to notice, and it is a mixed legacy.

The Court said, in effect, that the First Amendment protects belief absolutely but does not protect every action done out of belief. Congress was deprived of power over mere opinion, the Court said, but left free to reach actions that were in violation of social duties or subversive of good order. It offered a famous illustration: if a man believed human sacrifice a necessary part of religious worship, no one would say the government must permit it.

That distinction between belief and conduct has had a long life. It gave us the rule in Employment Division v. Smith (1990), which a majority of the Justices, led by Justice Scalia, read to say that a generally applicable law does not violate the Free Exercise Clause even when it burdens a religious practice. You can read about the argument that still divides conservatives in Employment Division v. Smith and the Scalia rule that still splits conservatives.

I do not think Reynolds was a model of constitutional sensitivity. The Court treated polygamy as a practice so odious that it did not need to weigh the claim carefully, and it spoke of it in language that now reads as contempt for a minority religion. But there is a serious argument on the other side: marriage law is a core responsibility of the state, the federal government was acting in a territory where it had direct authority, and the case did not question anyone's right to hold the belief. The church itself ended the practice of new plural marriages in 1890, and Utah became a state in 1896. Whatever you think of the reasoning, the case shows that religious liberty has always had to be defended against both mobs and majorities, and sometimes the majority wins.

The rescission, 1976

Now the part of the story that restores some faith in self-government.

In the decades after, the order against the Latter-day Saints stayed on the books. Nobody enforced it. It simply remained, a dead letter and a disgrace. On June 25, 1976, Governor Christopher "Kit" Bond signed an executive order rescinding Boggs's order. In the language of the rescission, Bond wrote that he was expressing on behalf of all Missourians deep regret for the injustice the order had caused.

That is something. A Republican governor of Missouri, a hundred and thirty-eight years later, simply said it was wrong. No lawsuit forced him. The institutions of a free society did what they are supposed to do over time: they corrected their own record.

The steelman: isn't this just an old story?

An objection I hear: it was nearly two hundred years ago, Missouri apologized, and in a country where Latter-day Saints hold high office in both parties it is hard to see the relevance.

I answer in three points.

1. The pattern is not old. Majorities have repeatedly decided that a minority faith is dangerous and used the machinery of government against it. Ask the Santeria practitioners of Hialeah, Florida, whose animal-sacrifice ritual a city targeted with ordinances in the 1980s, a story in A Santeria church, a Florida city and the unanimous ruling for minority faiths. The Court was unanimous, and the lesson was the same.
2. The test of a principle is whom it protects. If your commitment to religious liberty stops where your own comfort stops, it is a preference, not a principle. Conservatives who want the state to leave churches, schools and ministries alone need to hold the line for faiths they find odd, since the rule that protects the odd faith is the same rule that protects theirs.
3. The law's protection is only as good as the people's memory. A rescinded order in 1976 means somebody remembered. The same memory is what stands behind Washington's promise, in his 1790 letter, of a government that gives "to bigotry no sanction," which you can read about in To bigotry no sanction, Washington's 1790 letter to the Jews of Newport.

What the Founding says

The Constitution speaks to this in two places. The First Amendment forbids Congress from "prohibiting the free exercise" of religion, and Article VI says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The Fourteenth Amendment, ratified in 1868, adds that no state may "deprive any person of life, liberty, or property, without due process of law" or deny the equal protection of the laws. Missouri's governor in 1838 did not have the Fourteenth Amendment to answer to. We do.

The Founders understood that the power to persecute is the power to rule, and that any faith can be the next target. Madison's Memorial and Remonstrance of 1785 said that the same authority that can establish one religion can establish others, and the freedom of one person's conscience is the foundation of everyone's. For more on how the First Amendment's text works, read Sixteen words on religion in the First Amendment, read phrase by phrase, and for the courage that conscience requires, two schoolgirls, a flag salute and the 1943 ruling that protected conscience.

The case in brief

1. On October 27, 1838, Governor Lilburn Boggs ordered that Missouri's Latter-day Saints be treated as enemies and "exterminated or driven from the State," a directive aimed at a religious group as such.
2. Three days later, at Haun's Mill, militiamen killed about seventeen Latter-day Saints, and no one was held to account.
3. Thousands were forced from Missouri to Illinois, then to Utah, and the Court's 1879 decision in Reynolds shows that even a lawful limit on a practice can be written without respect for the believer.
4. Governor Christopher Bond rescinded the order on June 25, 1976, apologizing on behalf of the state.
5. The lesson for conservatives is that religious liberty is tested on the unpopular faiths, and a principle that protects only the favored is not a principle.

What you can do: read Article VI and the First Amendment in the Constitution, then ask your own state's attorney general or legislature how your state protects minority faiths' right to worship and build.