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.” 

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“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.

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? 

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.