Sunday, March 2, 2014

Of Secularism, Freedom of Religion and Freedom From It

“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”
~ John G. Heyburn II, Kentucky Federal District Court Judge

Last Week's Broadside: Oaks, Mohler and the Deseret News

A broadside was launched this past Tuesday and Wednesday against “secularism” and the perceived banishment of the “free exercise of religion in the public square.” One salvo was fired in Rexburg by Elder Dallin Oaks at a BYU-I devotional. Another salvo was fired in Provo by Albert Mohler, the president of the Southern Baptist Theological Seminary, who was invited to address BYU students on the subject of secularism, religious liberty and “erotic liberty” (Mohler’s term; I plan to write about this address in a subsequent post). The third salvo was fired the following day – last Wednesday – when the Deseret News ran an editorial entitled “Banishing Free Exercise of Religion From the Public Square.”

It would strain credibility to claim that these three salvos were not coordinated. It also is very interesting that the talks by Oaks and Mohler were given on the day that the plaintiffs in the Kitchen case filed their answering brief and the DN piece was published the day after. But I’m sure that’s just a coincidence.

The targets of this broadside were “secular humanism” (Oaks), “secularism” (Mohler), and the “siren song of the secularists” (DN) – all of which, each claimed, are causing an erosion of the free exercise of religion in America. Each speaker or editorialist ultimately targeted homosexuality and the “redefinition of marriage” as prime examples of how religious liberty is under attack in this country.

The Deseret News Editorial

I wrote about Elder Oaks’ devotional address on Friday. Today, I’d like to turn briefly to the DN piece. Though not particularly coherent, the editorial does manage to hit what I suspect were the “talking points” agreed upon as part of the broadside.

First, the title of the piece, “Banishing free exercise of religion from the public square,” hits on a phrase also used by Oaks in his address: “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.”

Secondly, the attack on secularism that was a feature of all three salvos.

Thirdly, and most prominently, comes the lament about the danger to religious liberty, although I think the DN’s salvo widely misses the mark here. Rather, it seems intent on hitting the talking point, without any evidence to back up its claims, which are summarized as follows:

“[T]hose motivated by religious convictions are being pressured to leave the public square — to put their religious convictions out of sight, sequestered from public debate about vital moral issues …In the cauldron of our nation’s fiercest moral debates, secularists insist that religious beliefs and viewpoints be made private.”

Fourthly, the DN editorial next comes to what I assume was the main talking point, without providing any rational connection between the foregoing “cauldron” statement and the immediately following paragraph:
“Take the debate about whether a state may continue to define marriage as between a man and woman. [Ok, I’m waiting to see how those motivated by religious convictions are being pressured to stay out of this debate. Wait for it … oh, maybe not.] Principles of federalism give states sovereign power in marriage laws [another talking point, no doubt, but has no logical connection whatsoever to the sentence that preceded it]. In cases of dispute, states debate and change laws as their people see fit. But our nation is ill-served when federal judges impose a definition of marriage [another talking point] — one that is not sanctioned by the Constitution [indeed, how so?] — on states like Utah, Oklahoma, Virginia and Texas.”

Freedom of Religion and Freedom From It

There are many things, well perhaps not that many, that could be said about the DN editorial. In response to it, I’d like to simply quote a few passages from the opinion (in Bourke v. Beshear) of Judge John G. Heyburn II, a federal district court judge in Kentucky who recently struck down the provisions of Kentucky’s constitutional amendment that bars recognition of same-sex marriages legally performed outside Kentucky’s borders. Note that Heyburn has been serving on the federal bench for over 20 years, having been nominated in 1992 by President George H. W. Bush on the recommendation of Senator Mitch McConnell, current minority leader in the Senate. 
“While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States … Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them.” 
“In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution.” 
“Usually, as here, the tradition behind the challenged law began at a time when most people did not fully appreciate, much less articulate, the individual rights in question. For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another’s constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass.” 
“For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing same-sex marriage clashes with many accepted norms in Kentucky—both in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public’s acceptance. For these reasons, the Court feels a special obligation to answer some of those concerns. 
“Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer. 
“Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. 
“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”
Surely, these words are, though offered humbly, as powerful as any written about the American Experiment and reflect the America I want to live in.


  1. Thank you for this post, and your previous post on these issues. Judge John G. Heyburn II is now my hero!