What Are BYU-I Students Supposed to Think, Elder Oaks?

This past Tuesday, while addressing a crowd of BYU-Idaho students at a devotional, Elder Dallin Oaks implicitly stated what the State of Utah has studiously avoided saying since the Kitchen decision last December: religious beliefs are really what is behind the State’s adoption and defense of Amendment 3, which bans same-sex marriage in Utah.

In a wide-ranging talk that focused on testifying of God, Oaks touched on a topic on which he has often spoken: the perceived threat to “religious freedom” in today’s society. Here are his remarks that are the subject of this post:

“We should also use our political influence to resist current moves to banish from legislative and judicial lawmaking all actions based on religious convictions and motivations. A dangerous recent example of this was the opinion of the single federal district judge who invalidated the California Proposition 8 constitutional amendment. The precedent of his decision on the inappropriateness of presumed religious or moral motivations as a basis for lawmaking was used by the lawyers who persuaded another federal district judge to invalidate the Utah constitutional provision and laws affirming the traditional limitation on marriages to one man and one woman. Then, when an eminent lawyer was hired to take the appeal, he was criticized by the Human Rights Campaign for having religious motivations for his decision to defend traditional marriage. Where will this illogical attack on religious motivations end?”

There was a point in time when I admired Elder Oaks, who in his earlier life was a law professor and a judge on the Utah Supreme Court. But in a number of addresses given in the past few years (about which I have written here and  here), I have found myself shaking my head, not only because I disagree with what he is saying about legal and political matters, but because I believe he is consciously misleading in what he says. 

In my view, the above-quoted passage from his devotional address this past Tuesday was another example of this. I’d like to break this passage down and add my own commentary.

"We should also use our political influence to resist current moves to banish from legislative and judicial lawmaking all actions based on religious convictions and motivations." 

Elder Oaks does not explain what he means by, or provide examples of (despite what he says in the next sentence) “moves” that are intent on “banishing” “actions.” What moves? Banishment? What actions? By using these ominous words, Oaks paints a dark and foreboding picture to the students listening to him, but he provides no context, no specifics. What does he expect the students to think?

Furthermore, he implies that there is something the students who are listening to him can do, some way that they can use their “political influence” to affect “judicial lawmaking.” Federal judges are appointed, not elected. Federal judges rely on established precedent and legal principles in reaching decisions and verdicts in every case that comes before them. Elder Oaks knows this. What does he expect the students to think?

"A dangerous recent example of this was the opinion of the single federal district judge who invalidated the California Proposition 8 constitutional amendment."

Dangerous. Why? A single judge? The Prop 8 case began as a trial. Trials are heard by one (a single) judge. Elder Oaks knows this. Judge Walker’s trial decision in the Prop 8 case was then appealed, but not by the State of California, which refused to defend Prop 8 at the appellate level. The 9th Circuit Court of Appeals allowed a group that had sponsored Prop 8 to appeal, but upheld the trial court’s decision. Elder Oaks knew all this, but he did not say so in his address. What does he expect the students to think?

"The precedent of his decision on the inappropriateness of presumed religious or moral motivations as a basis for lawmaking …"

Here, Elder Oaks is using his background as a lawyer and jurist, which appears to give additional gravitas to his remarks. What does he expect the students to think?

Elder Oaks implies that Judge Walker’s decision was based (solely) on the “inappropriateness of presumed religious or moral motivations” for banning same-sex marriage in the State of California. This is, in fact, untrue. There were a number of bases upon which Judge Walker followed established legal principles in deciding whether the discrimination against same-sex couples in California was justified by a rational connection to legitimate state interests. What does Elder Oaks expect the students to think?

That being said, one of the legal principles upon which Judge Walker relied is that developed in a string of Supreme Court decisions over the past 30 years (which in turn were based on earlier decisions). That principle is that, though the governing majority in a state has traditionally viewed a particular practice as immoral, this is not a sufficient reason for upholding a law prohibiting the practice, and without any other asserted state interest, “morality” is not a sufficient rationale to justify a law that discriminates among groups of persons. Elder Oaks knows all this. What does he expect the students to think?

“ … was used by the lawyers who persuaded another federal district judge to invalidate the Utah constitutional provision and laws affirming the traditional limitation on marriages to one man and one woman.”

I’ll just cut to the chase on this one. Elder Oaks seems to imply that Judge Shelby (the judge who ruled on the Kitchen case) is incapable of determining on his own what legal principles were involved in the case before him. Oaks also implies that there was no basis for Judge Shelby’s decision other than “the inappropriateness of presumed religious or moral motivations as a basis for lawmaking.” Elder Oaks knew this wasn’t the case. What does he expect the students to think?

“Then, when an eminent lawyer was hired to take the appeal, he was criticized by the Human Rights Campaign for having religious motivations for his decision to defend traditional marriage.”

Okay. Does Elder Oaks really believe the students before him know what the Human Rights Campaign is? I can almost see the look of disdain on Oaks’ face as he said these words. What does he expect the students to think?

The Human Rights Campaign, which is arguably the most important gay-rights advocacy organization in the country, took issue with the appointment of Gene Schaerr  because Schaerr’s duty was to represent the interests of ALL Utahns, not just Utahns who happen to be Mormons who do not support marriage equality. (I pointed out my own issues with this appointment here.) Elder Oaks’ comment substantiates concerns voiced by the HRC and others, in that he implicitly states that the interests of the LDS Church and that of the State of Utah are one and the same. What does he expect the students at BYU-I to think? 

"Where will this illogical attack on religious motivations end?"

Indeed? Illogical attack? What about it (assuming there is an “it”) is illogical? What does Oaks expect the students to think?

I’d like to turn his concluding question around: Where will religious-based attacks on constitutional principles end?