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? 

Alma vs. Oaks: Religion in Civil Society

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.

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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.

Conclusion

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.

Elder Oaks: Form Over Substance and Hidden Messages

I am a father. I am divorced. I am gay.  For almost three decades, I dedicated my life to being the best husband, father and priesthood holder I could be – in other words, to living the Mormon “Plan of Happiness.” For these and other reasons, Elder Dallin Oaks’ talk at this past weekend’s LDS General Conference hit several nerves and left me shaking my head.

I carried on a debate within myself whether I should bother writing this post. Ultimately, as a gay man (who has a responsibility to speak out) and as a father of children who are and will be practicing LDS and will be starting their own families, I felt I should express my thoughts and feelings about the messages contained in Elder Oaks’ talk – if for no other reason that to articulate these thoughts and feelings in my own mind and heart.  

Oaks gave a talk about protecting children, and the overriding theme of his talk was that selfish adult interests are the cause of children suffering throughout the world. Some of the examples he listed – of malnourished children and of children being coerced into fighting in war-torn countries in Africa – are obvious, and I have no comment concerning these examples, except to point out that he could have listed others, such as child-trafficking and the sex trade. He also could have directed his condemnatory remarks to governments, policies and systemic problems that create and permit these deplorable conditions. But he did not do this.

Instead, Oaks focused the bulk of his talk on various issues and conditions that are more commonly found in more developed societies, such as abortion, child abuse and divorce, all of which he decried as being the result of adult selfishness. There were two aspects of this part of his talk which engendered strong feelings within me: first, his emphasis on form over substance; and second, the hidden messages contained within his remarks.

The Facilitators

As I listened to Oaks remarks, I was reminded of a passage of the patriarchal blessing I received many years ago that spoke of a woman coming into my life with whom I could go to the temple and be married for time and eternity “in order that” the children that would bless our union “may be born under the covenant.” There was always something about that sentence that always made me feel like a facilitator, a cog in a vast celestial machine. There was nothing about developing as a father or husband (let alone as a human being), about experiencing the “joys of family life,” etc. I was there to fulfill someone else’s purpose(s).

This is how I felt when I listened to Elder Oaks’ talk. He decried abortion and a shrinking birth rate because both serve to reduce the number of children coming into this world. Adults were not fulfilling their roles as facilitators for creating babies. They are being selfish.  

Yet, what would Oaks, speaking globally, have these adults do? Bring unwanted children into the world to suffer some of the conditions that he decries elsewhere in his talk? And closer to home, what would Oaks have LDS adults do? Have children. Never mind whether these adults are emotionally healthy and economically able to produce and rear these children.  

There are many things that could be said about this oft-repeated message for LDS couples to have children, but the message that I want to focus on is this: You (adult LDS) are facilitators. Your responsibility is to get married and have children. If you don’t get married, you’re not fulfilling God’s plan. If you get married and consciously choose not to have children or to limit the size of your family, you’re not fulfilling God’s plan.  

Once you get married and have these children, it is your responsibility to make sure that your marriage stays intact and that you raise these children to be stalwart, emotionally well-adjusted citizens of the kingdom. If you have “issues” which make it difficult for you to fulfill these responsibilities, that’s your problem. Turn to the Lord (I believe this is a near quote from Oaks' talk).  Fix it.

The Vise of Expectations and Reality:  Form over Substance

Elder Oaks’ talk highlighted, for me, what is a systemic problem in the LDS Church, i.e., with all the emphasis on marriage, family and children, there are precious little resources and support provided for accomplishing these goals.  There is little emphasis, either on the ward level or above, that focuses on nourishing parents, of recognizing their personal challenges, or of celebrating these parents’ roles as human beings with their own needs, desires and value apart from their role as parent.   

Rather, parents are expected to perform, and there is an unlimited amount of competition among LDS parents that preclude most from being honest about their real challenges, feelings and aspirations. And don’t even think about divorce. For years, this was so deeply engrained in me that I honestly felt like my entire adult life would be a failure if I were to divorce (especially since my own parents and siblings had all experienced divorce). And make sure that you never, ever be anything less that an ideal parent under all circumstances.

Elder Oaks’ talk evoked all these feelings in me because of my own experience. I see and have seen so many couples in the Church that are caught in a vise between the Church’s expectations and their own shortcomings (and aspirations for some form of individual worth). Repeating what I have already stated, this vise squeezes the life out of many parents. There is no nurturance (as was the case with Oaks’ talk), and parents are taught (as was the case in Oaks’ talk) to ignore their own “selfish” concerns and concentrate on the needs of their children. Then, when the pressure becomes too great and some parents snap or marriages breakdown, these unfortunates are too often cast aside as broken, selfish and unworthy. Form over substance.

To me, Oaks’ comments about cohabiting heterosexual couples and same-sex couples parenting children are a variation on this theme of form over substance. Never mind whether the love that these parents provide for their children is warm, nurturing and real – possibly far more so than in many heterosexual marriages – the fact that this love exists in a form that is judged invalid renders the love invalid. In other words, I frankly think, judging by his comments, that it is likely that it is impossible for Oaks to conceptualize the love of a parent for his or her child unless that love exists within the framework of a traditional marriage.  He pre-defines what “love” is and criticizes anyone or anything that does not fit within the parameters of that definition.

Hidden Messages

There is much more that could be written about “the vise,” but I want to conclude with a few words about another aspect of Oaks’ talk that I found very disturbing, albeit not surprising.

Oaks, who has carved out a niche for himself among the general authorities by making several speeches about so-called threats to religious freedom (as have members of the Catholic hierarchy and leaders of the so-called “family values” movement, begging the question of whether all of these comments are part of a coordinated strategy), made a point early in his talk that his comments were not “political.” But he then went on to make a number of statements about societal conditions that can only be seen as an attempt to influence public policy through the voting rights of the Church’s members.  (Note as well that Oaks prefaced his remarks by reminding his listeners that he is an apostle “to the world,” not just to the Church – the unspoken implication being that he is perfectly justified in attempting to influence the civic affairs of this and other countries (which he would defend as well as being an exercise of “freedom of religion”)).

In an address that reads more like a legal opinion than a spiritual address in which Oaks cited various “scholarly” studies and a columnist in the New York Times, he describes a long list of societal problems (to which he offers no solutions), and, again, the implicit message of his remarks is that something needs to be done in the civic arena do right these problems.

For example, Oaks decries what he terms as “no-fault divorce.” The unspoken assumption is that he wants to roll back the advances that have been made in family law over the past 40 years by once again making divorce laws more strict (look to the upcoming session of the Utah Legislature). As if this would somehow fix the “societal problem” of high divorce rates and the resulting bad effects on children (the stated theme of his address).

Oaks also decries the high number of children who are born to cohabiting couples. But he leaves unspoken how this “problem” should be addressed. He also turned his guns on the “social experiment” of children being raised by same-gender parents. He does not propose a “solution” to this social experiment, but the implication left in the minds of devout church members is that he favors laws that would make it more difficult, if not impossible for gay and lesbian couples to have children.  

Among other things that could be said about this statement and its implications, is that it is a perfect example of how the church encourages people, on the one hand, to be friendly to, (for example) gay couples in their neighborhood, but on the other hand encourages (implicitly and explicitly) their members to vote take away the rights of these same couples. And getting back to form over substance, Oaks warns about the potential effects on children of being raised by same-sex parents, yet he implicitly advocates policies that would make it more difficult for these parents to raise their children in a healthy wholesome environment.

In conclusion, I agree wholeheartedly with Elder Oaks that society should protect and nurture children, and I believe it is perfectly appropriate for an apostle to encourage members of the LDS Church to do the same. But I personally believe that the best way to nurture and protect children is to nurture – whether as a church or a society – the adults who are tasked with caring for these children, rather than finding fault and criticizing these adults and politicizing the manner in which such care is provided.