One of the primary arguments of the State of Utah in its recently filed brief with the 10th Circuit Court of Appeals focuses on "preserving Utah’s marriage definition [because it] furthers the State’s vital interests in accommodating religious freedom and reducing the potential for civic strife."
"Protecting" religious "freedom" has become a common theme among certain conservative religious leaders around the country, including members of the Roman Catholic hierarchy and members of the LDS Church's hierarchy. Elder Dallin Oaks of the Church's quorum of apostles has been particularly vocal on this issue.
In partial response to Utah's brief, I am republishing the following post which was originally published on my Invictus Pilgrim blog in February 2011. I think it is as timely now as it was then.
At another time in my life, I, like most members of the Church, would read what Elder Oaks has said about religious freedom in modern American life and, given that he had an impressive legal career prior to becoming an apostle, assume that he was making valid points that were not only inspired, but based solidly in American constitutional law and tradition. That was at another time in my life.
This past Friday, Dallin Oaks gave a speech at the law school of Chapman University in California, entitled “Preserving Religious Freedom," the complete transcript of which (along with a video) is available here. Though I have a legal background, I am not learned in constitutional law and do not propose to comment on Elder Oaks speech from that perspective. But I do not think one needs to be a constitutional scholar to take issue with the basic points that Oaks makes in his address. (It should be kept in mind that Oaks was not addressing an LDS audience in General Conference, but a non-Mormon audience in a secular environment.)
Since he conveniently summarized them at the conclusion of his remarks, I will use these (set out below in bold) as an outline for my comments, heading various sections with his summary points.
One could respond to Elder Oaks’ speech from a number of different perspectives and in a number of different ways. I have chosen to analyze Oak’s comments within the context of a comparison of Elder Oaks’ views on the role of religion in civil society to those of Alma the Younger. Those familiar with the Book of Mormon will remember that, in the first chapters of the Book of Alma, Alma was serving as both high priest of the church as well as chief judge, thus combining ecclesiastical and political power in one person. Because of growing iniquity in the church, however, he eventually decided that he needed to do something.
Interestingly, however, Alma did not choose to use his political power to enforce standards of morality among his people. Rather, he resigned as chief judge and devoted himself to preaching to the members of the church, “seeing no way that he might reclaim them save it were in bearing down in pure testimony against them … confin[ing] himself wholly to the high priesthood of the holy order of God, to the testimony of the word, according to the spirit of revelation and prophecy” (Alma 4:19-20).
After discussing Elder Oaks’ comments, I would like to return to Alma’s actions in order to compare the way in which Alma chose to address societal “immorality” and lack of belief, versus the positions that Elder Oaks advocates.
Oaks Point #1: “Religious teachings and religious organizations are valuable and important to our free society and therefore deserving of their special legal protection.”
As support for this proposition, Elder Oaks basically makes the argument that religious organizations do a lot of good work in society and teach people to be moral, which in turn supports a stable society and, hence, government. Because of these services, Oaks argues, religious organizations and teachings deserve special legal (as opposed to simply cultural) protection. Among many other things, implicit in Oaks’ statements is that religious speech (i.e., teachings) deserves special legal protection, above any other kind of speech – an important foundation for the rest of his arguments.
Oaks treats his proposition as self-evident, needing no basis in law or tradition – which he does not in fact cite. Rather, after treating his point as self-evident, he goes on to decry the deterioration of faith in society and implies that this situation provides even more justification for his position.
But why, in fact, should religious organizations, let alone religious teachings be granted special legal protection in 21st- century American society? This is the question that Oaks does not answer. Given that this assertion is the foundation for the rest of his arguments, it deserves careful and critical scrutiny. I will leave this to others. For the purpose of this post, I will simply contrast this approach to the legal status afforded religion with that described in the first part of the Book of Alma as pertaining to Nephite society. Alma did not seek legal buttressing of his preaching; rather he approached the issue from the opposite perspective: he viewed his preaching as buttressing the legal framework of society.
Oaks Point #2: “Religious freedom undergirds the origin and existence of this country and is the dominating civil liberty.”
Again this assertion, at least the first half of it, sounds totally reasonable on first hearing. But I find the combination of the historical role of religious freedom with the assertion that it is the “dominating civil liberty” disingenuous and, some might argue, insidious. The acknowledgement of the first half of the assertion is apparently intended to lend credence to rather striking assertion that religious freedom is the “dominant liberty” in the panoply of individual rights guaranteed by the Bill of Rights.
Oaks offers no scholarly support for this assertion. He cites one document, a report prepared in 1999, but does not identify the authors. Once again, he makes an extremely broad assertion with no authority, treating his conclusion as self-evident. He concludes this section of his speech with a statement which strikes me as breathtaking in its scope: “I maintain, that in our nation's founding and in our constitutional order religious freedom and its associated First Amendment freedoms of speech and press are the motivating and dominating civil liberties and civil rights.”
Once again, I leave it to others to discourse in a more scholarly fashion on the many implications of this statement. I will simply point out that I find this assertion extraordinary and dangerous, if for no other reason that it purports to again hand organized religion a “trump card” that ensures that freedom of religion trumps every other right guaranteed to American citizens under the Constitution.
Oaks Point #3: “The guarantee of free exercise of religion is weakening in its effects and in public esteem.”
The bulk of Oaks’ speech is directed to a discussion of this point. Having established, in his view, that religious teachings and organizations deserve special legal protection and that freedom of religion (including the all-important right to exercise one’s religion) is the “dominant” civil right, Oaks launches into a lengthy discussion of how the right to exercise (whatever that term means) one’s religion is under assault in modern America. I will focus on only a few of Oaks’ comments, particularly those having to do with gay rights.
Before launching an attack on gay rights advocates, Oaks plainly highlights one of the main themes of his address: “Religion must preserve its preferred status in our pluralistic society in order to make its unique contribution—its recognition and commitment to values that transcend the secular world." He then refers to comments that Cardinal Francis George made when speaking at BYU in 2010, who spoke of “threats to religious freedom in America that are new to our history and to our tradition,” one of these being “the development of gay rights and the call for same-sex 'marriage.'"
Oaks describes a number of examples of how he feels that religion has been denied its place in the “public square” by gay rights advocates. In the process, he manages to totally distort the entire debate between those who seek equal civil rights for gays and those, such as the LDS Church, who seek to deny, on religious grounds, these civil rights. In addition to his previous assertions that religious organizations and beliefs should enjoy special legal protection and that freedom of religion is the “dominant” civil right, he now claims that the act of those who assert civil rights for gays is an attack on the freedom of religion (and must therefore be quashed).
“Along with many others,” said Oaks, “I see a serious threat to the freedom of religion in the current assertion of a “civil right" of homosexuals to be free from religious preaching against their relationships. Religious leaders of various denominations affirm and preach that sexual relations should only occur between a man and a woman joined together in marriage. One would think that the preaching of such a doctrinal belief would be protected by the constitutional guarantee of the free exercise of religion, to say nothing of the guarantee of free speech. However, we are beginning to see worldwide indications that this may not be so. Religious preaching of the wrongfulness of homosexual relations is beginning to be threatened with criminal prosecution or actually prosecuted or made the subject of civil penalties.”
Almost all of the examples cited by Oaks of such “prosecution” involve persons who are trying to assert personal religious beliefs in governmental or quasi-governmental environments. In other words, these individuals have been called out by gay rights advocates for trying to use their public positions to espouse their own individual beliefs. So, not only does Oaks apparently believe that freedom of religion can be used as a “sword” (enjoying special legal protection and status) in public debate, it can also be used as a “shield” to protect it from responsibility for its actions and comments in the “public square” (a classic case in point being the Church’s involvement with Proposition 8).
Oaks Point #4: “This weakening [of religious freedom] is attributable to the ascendancy of moral relativism.”
This point is pretty much self-explanatory: Oakes decries the “rise” of moral relativism and the corresponding decrease of respect for organized religion. He then concludes with this statement:
“The preservation of religious freedom in our nation depends on the value we attach to the teachings of right and wrong in our churches, synagogues and mosques. It is faith in God—however defined—that translates these religious teachings into the moral behavior that benefits the nation. As fewer and fewer citizens believe in God and in the existence of the moral absolutes taught by religious leaders, the importance of religious freedom to the totality of our citizens is diminished. We stand to lose that freedom if many believe that religious leaders, who preach right and wrong, make no unique contribution to society and therefore should have no special legal protection.”
Correct me if I’m wrong, but it sure seems to me that Elder Oaks is essentially saying that the fact that more and more people in society have less and less respect for organized religion militates even more strongly for a special legal protection being given to the “unique contribution” that organized religion makes to society. Nothing seems plainer to me, however, that the intent of the Founders was to ensure that organized religion did not enjoy a privileged place in American society. Rather, religion was to do its thing, and government was to do its thing. Period.
Put another way, Elder Oaks’ assertions appear to put new garb on the age-old practice of trying to legislate morality: rather than simply having the government do organized religion’s bidding, organized religion seeks special protection and status within society to advance its agenda.
Oaks concludes by calling for a “broad coalition” to defend religious liberty, as he sees it: “All that is necessary for unity and a broad coalition along the lines I am suggesting is a common belief that there is a right and wrong in human behavior that has been established by a Supreme Being.” The question, of course, is who decides what that right and wrong is, and how much privilege, deference and protection are religious organizations and beliefs to be accorded in society in advancing “religious” views of right and wrong.
Many, if not most, members of the LDS Church will cheer Elder Oaks’ comments without giving them any serious thought. The bells and whistles, the catch-phrases, the code words are all there, triggering emotional responses that evoke that often-deadly mix within many members of patriotism, faith and blind obedience.
But I maintain that if thinking members of the Church would step back and consider the lesson of Alma from the Book of Mormon, as well as the ramifications of the central doctrine of the plan of salvation (free agency), they could not help but be deeply troubled by Elder Oaks’ comments. If organized religious organizations would do as Alma did, i.e., confining themselves “wholly to … the testimony of the word, according to the spirit of revelation and prophecy” then they would fulfill the task which Elder Oaks ascribes to them – without needing special status, privilege or protection in civil society.