Transcript: Elder Oaks Remarks at Claremont Graduate University Religious Freedom Conference

The following was delivered Friday, March 25, 2016, at Claremont Graduate University by Elder Dallin H. Oaks of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints.

Religious Freedom in a Pluralistic Society

I feel privileged to address this important religious freedom conference, which includes an impressive gathering of authorities. I have benefitted from what I have heard thus far and anticipate further learning in tomorrow’s sessions I am able to attend.

Since this audience contains many who are not members of my Church, I serve you best by beginning with a brief explanation that will help you understand the position from which I speak. For over 30 years I have served as one of the Twelve Apostles of Jesus Christ. It is my duty to teach and testify of His divinity, of His modern restoration of the fullness of His doctrine, and of the power of His priesthood. Unique to the doctrine of The Church of Jesus Christ of Latter-day Saints is our knowledge that God continues to call prophets to teach us and help us apply His commandments in the circumstances of our day.

The subject of your conference is of lifelong interest to me, and, for me, it has been a long life. My first publication as a young law professor at the University of Chicago was an edited book of talks given at a conference quite like this one. Published in 1963, over 50 years ago, that book was titled The Wall Between Church and State.

Your invitation to give a keynote address on religious freedom calls me out of legal retirement to speak in a non-Church forum on a subject where my lifelong concern far exceeds my current expertise. Consequently, this will not be a technical talk on legal precedents. I will speak as a participant in and knowledgeable observer of religious freedom during my lifetime to offer some perspectives and hopefully some wisdom on this important area of constitutional law and public policy.

I. Religion Is Valuable to Society and Deserving of Its Special Legal Protections

My first point is that religious teachings and the religiously motivated actions of believers are valuable to society and are deserving of special legal protection. This point of course contradicts the contention that religion is mostly a matter of history without significance in modern times, or, more ominously, that religion is irrational and discriminatory and therefore should be diminished in both public expression and influence. Far from relics of the past, religious principles and religious believers are a vital present and future force everywhere.

Current media attention to religion often focuses on the atrocities of extremists purportedly acting in the interest of Islam in a few parts of the world. While such perpetrators attempt to justify their actions on religious grounds, I see them as excesses on the fringe of anything that might claim to be “religion.” Many Muslim leaders have also condemned their actions.[1] Their atrocities do not qualify for the religious freedom I treasure. Moreover, those who condemn religion as the source of great atrocities through the ages must face the fact that the bloodiest conflicts in history, including the mass killings of the last century, were not done in the name of religion.[2] The genocide of the Holocaust, the Stalinist purges, the Cultural Revolution in China, the killing fields of the Khmer Rouge, and the ethnic cleansings in the former Yugoslavia, Rwanda, and Central Africa have been primarily motivated by secular ideologies and political, ethnic, or tribal differences, not by religious rivalries.[3]

Contrary to those who associate religion with human suffering, religion and its practitioners have motivated enormous good in the world. I spoke of this in a lecture at a celebration of the Becket Fund for Religious Liberty, focusing on the United States. I repeat some of that here.

Our country’s robust private sector of charitable works originated with and is still sponsored most significantly by religious organizations and religious impulses. This includes education, hospitals, care for the poor, and countless other charities of great value to our country.

Many of the most significant moral advances in Western society have been motivated by religious principles and persuaded to official adoption by pulpit-preaching. Examples include the abolition of the slave trade in England and the Emancipation Proclamation in this country. The same is true of the Civil Rights movement of the last half-century. These great advances were not motivated and moved by secular ethics or persons who believed in moral relativism. They were driven primarily by persons who had a clear religious vision of what was morally right.[4]

Our society is not held together primarily by law and its enforcement, but most importantly by those who voluntarily obey the unenforceable because of their internalized norms of righteous or correct behavior. Religious belief in right and wrong is a vital influence to produce such voluntary compliance by a large number of our citizens. George Washington spoke of this reality in his farewell address: ‘Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports,’ he said. ‘Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.’[5]

Over 200 years later, in 1998, Congress enacted a law that formally declares: ‘The right to freedom of religion undergirds the very origin and existence of the United States.’[6] That law formally associates our nation with the truth voiced by Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the [British] Commonwealth:

'[Religion] remains the most powerful community builder the world has known. … Religion is the best antidote to the individualism of the consumer age. The idea that society can do without it flies in the face of history.’[7]

Even the agnostic Oxford-educated British journalist Melanie Phillips admitted that 'one does not have to be a religious believer to grasp that the core values of Western Civilization are grounded in religion, and to be concerned that the erosion of religious observance therefore undermines these values and the “secular ideas” they reflect.'[8]

Note that the British journalist referred to the importance of religious observance, not just religious faith or religious conscience. Similarly, the New York Times columnist Ross Douthat wisely observed that “the social goods associated with faith flow almost exclusively from religious participation, not from affiliation or nominal belief.”[9]

Similarly, Clayton Christensen, who has been hailed as a worldwide “thought leader” on business management and innovation,[10] relies on religion’s role in teaching “obedience to the unenforceable” as the basis for his notable essay “Religion Is the Foundation of Democracy and Prosperity.”[11]

Religion’s role as a protector of democracy has been widely noted.[12] Religious organizations stand as a “buffer” or “mediating institution” to protect individual believers and their organizations against the powerful impositions of government.

Those who maintain that secular ethics and morality can substitute for religion make academic arguments but lack the evidence to support their theories. As affirmed by the rabbi, the agnostic journalist, the business scholar, and many others, I maintain that the teachings and free practice of religion are essential to a free and prosperous society. I also maintain that religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of religion and religious bodies in our public life without seriously jeopardizing our freedom and prosperity.

It follows that religious freedom is not just the concern of religious persons. Others have a strong interest in religious freedom because it is necessary for peace and stability in our pluralistic world. The protection of conscience is a vital ingredient for stability because it helps people from a wide spectrum of beliefs feel assured that their deepest concerns and values are respected and protected.

It is also true that the preservation of religious freedom depends upon public understanding of and support for this vital freedom, which in turn depends upon the value the public attaches to the teachings of right and wrong in churches, synagogues, and mosques. All should understand that it is sincere faith in God—however defined—that translates religious teachings into the moral behavior that benefits a nation. Moreover, this impact is magnified by the social interaction that occurs within religious organizations. It follows that religions that teach right and wrong and the organizations through which they work make a unique and indispensable contribution to society and should therefore have special legal protections.[13]

II. Denominational Religion Is Declining and Religious Freedom Is Weakening

My assertions about the value of religion and its qualification for special legal protection may sound outdated to some. The United States seems to be moving strongly towards secularism, with the resulting disconnect from belief in God and the idea of ultimate accountability to the Divine. This can lead to a loss of respect for religion and conscience and even to anger because of the guilt that is seen to flow from their teachings.

Leading social scientists Robert D. Putnam of Harvard and David E. Campbell of Notre Dame have observed that the role of religion in the United States has been declining for about a half-century.[14] Whatever the overall state of belief in God, organized religion is surely on the decline, especially with young adults. For example, Putnam and Campbell report that in 2011 the proportion of 18- to 29-year-olds not affiliated with any religious denomination was 33%, up from 25% just five years earlier.[15] This trend among young adults is alarming for the future of organized religion. With the diminishing of public esteem for religion, the guarantee of free exercise of religion seems to be weakening. Religion is surely under siege by the forces of political correctness that seek its replacement by other priorities. More of that later.

Why does religious freedom seem to be weakening?

The increasing domain of government is surely one reason. As citizens look to government for more and more and to private initiative for less and less, the unregulated room for religious activity is reduced and the likelihood of government regulation of religious activities increases. Private organizations that pursue actions seen as a challenge to government policies or programs can be made targets for laws or regulations. Boy Scouts of America is an example. Many others will occur to you.

I will mention only one other reason—the increasing complexity of our society and diversity of our population. When our population included little more than different Christian and Jewish denominational beliefs in a divine being, the meaning of religious freedom was well understood and widely shared. With the increasing diversity of religious beliefs, including non-Abrahamic denominations, the scope of protection under the Free Exercise Clause began to change. When a constitutional right covers more and more, the scope of its protection is likely to become less and less.

III. Challenges to Religious Freedom

The most powerful voice on religious freedom in the United States is that of the United States Supreme Court. Its opinions are mixed on the practical meaning of religious freedom. In 1990 the court issued its most important free exercise decision in many years, Employment Division v. Smith, which significantly narrowed the traditional protection of religion.[16] By contrast, two more recent court decisions have signaled that the free exercise of religion remains vital.[17]

Despite the Supreme Court’s most recent signals, some U.S. scholars contend that a religious message is just another message in a world full of messages, not something to be given special protection. One scholar, in a book titled Freedom from Religion, takes the extreme position that religious speech should have even less protection than nonreligious speech.[18] Another scholar recently published a book titled Why Tolerate Religion?[19] Other scholars argue that our nation’s founding stories promoting the desirability of religious freedom, such as the religious motivations of the Pilgrims who founded New England, are myths that should be reinterpreted or discarded because they are improperly used to justify religiously based laws.[20]

Perhaps less radical than these rejections of the text and history of the guarantee of free exercise are calls for churches to simply abandon their objectionable beliefs and actions by revising their doctrines. Thus, the Washington Post recently published a prominent university professor’s recital of instances where official and social pressure “forced religious adherents to behave better, and over time … the religions themselves changed their doctrines and belief systems to conform to society’s demands.” In our day, he continued, we are “at one of those moments in history when pressure from the larger society pushes against religious belief and insists that believers, at least when doing business with the public, not act even on sincere objections to same-sex marriage.”

He concluded by proclaiming that the difficult conflicts we are experiencing are “the birth pangs of a new wave of equality.”[21] And, he surely implied, what must now surrender is the free exercise of religion to the extent that it is contrary to this “new wave.”

Similarly, some public policy advocates have attempted to intimidate persons with religious-based points of view from influencing or making laws in our democracy. One part of this effort is the recent characterization of the free exercise of religion as limited to the privilege of worshipping in the protected space of our own homes, churches, synagogues, or mosques. Beyond those protected spaces, the argument goes, religious believers and their organizations have no First Amendment protection—not even normal free speech guarantees.

If you think that characterization is overstated, consider these examples of reactions to our Church’s legal lobbying before the Utah Legislature last month. After the Church’s public statements questioning the merits of two separate bills, one on medical marijuana and the other on hate crimes, a survey asked whether these Church statements helped or hurt the legislative process.[22] Among many responses, both pro and con, were some that questioned the Church’s right to speak on the question at all. For example:

1. “Whatever happened to separation of church and state? A church, and it doesn’t matter what religion, has no business mingling in legislative affairs that could potentially help (or hurt) people that don’t have the same beliefs as them.”
    
2. “This is a clear-cut case of lack of separation of church and state.”
    
3. “The blatant attempt by the LDS Church to control the Utah legislature is fundamentally wrong in many ways: it not only violates the State’s constitution but undermines the whole democratic process. Yes, they have the right to do what they did but having the right and doing what’s right can be two different things. They have unique power influence and they know it.”
    
4. “As a non-Utahn and believing member of the LDS Church, I feel their lobbying efforts hurt the legislative session. While I acknowledge their right to lobby for their religious stances on certain issues, the disconnect for people like me takes place when it feels like they are using their influence in Utah to sway Utah legislation.”

In other words, the Church should not speak to lawmakers at all, especially when its lobbying is likely to be successful.

Earlier, a similar point was made by a law professor who criticized the involvement of the LDS Church and its members on a contested issue here in California. Professor Geoffrey Stone, a distinguished associate of mine at the University of Chicago Law School, wrote that the popular support for Proposition 8 was the result of “a highly successful effort of a particular religious group [you know who he meant by that] to conscript the power of the state. … This is a serious threat to a free society committed to the principle of separation of church and state. … They are not free—not if they are to act as faithful American citizens—to impose their religious views on others. That is, quite simply, un-American.”[23]

How is it “un-American” and a “serious threat to a free society” for a religious organization and its members to participate in a public process of lawmaking? Stone cited “the principle of separation of church and state” and asserted that certain persons “are not free … to impose their religious views on others.” These arguments leave me wondering why any group of citizens with secular-based views that make up a majority is free to impose their views on others by a democratic lawmaking process, but persons or their organizations with religious-based views are not free to participate in the same democratic lawmaking process, whether in a majority or—as in California—merely a large group not comprising a majority? Whatever the answer to that question, I suggest that Stone’s criticism of Mormon voters or Mormon lobbyists or their Church is unjustified.

If these critics feel the need to criticize something that is truly unprecedented and unconstitutional, they should examine the judicial events that led up to the nullification of Proposition 8. These included a federal district judge disallowing a popular vote on the basis of the alleged religious motivations of some of its proponents and the California attorney general and governor refusing to perform their constitutional duties to defend state laws duly adopted by the constitutional lawmaking process.[24]

In view of current experience and culture, how should religious persons and their organizations whose positions are dictated or affected by religious beliefs lobby or otherwise enter the debate on public issues? They should not be required to forego or deny their religious or other beliefs or motivations, but they should be counseled to be prudent. They will usually be most persuasive in political discourse by framing arguments and explaining the value of their positions in terms understandable to and subject to debate with those who do not share their beliefs. All sides should seek to contribute to the reasoned discussion and compromise that are essential in a pluralistic society.

Our friend Elder Neal A. Maxwell taught on this subject with a quote that seems as modern today as when he used it nearly 40 years ago. His talk, appropriately titled “Meeting the Challenges of Today,” included this quote:

What the secularists are increasingly demanding, in their disingenuous way, is that religious people, when they act politically, act only on secularist grounds. They are trying to equate acting on religion with establishing religion. And—I repeat—the consequence of such logic is really to establish secularism.[25]

Advocates who seek to banish religious arguments from the public square should answer this question: How would the great movements toward social justice in the United States, such as the abolition of slavery or the furthering of civil rights, have been advocated and pressed toward adoption if their religious proponents had been banned from participating on the issue by the assertion that private religious or moral positions were not an acceptable basis for public discourse or lawmaking?

IV. Approaching Conflicts Between Religious Freedom and Nondiscrimination

When I asked your conference leaders for subjects I might discuss in this message, they responded with several, including this tough one: “Conflicts between nondiscrimination and religious freedom are in many ways the heart of the matter. How do we adjudicate these competing values?”

I spoke on this subject at a court/clergy conference in Sacramento last October,[26] and will elaborate here some of the things I said there.

My main message is that we should all seek a cease-fire in the culture wars. In our pluralistic society we must learn to live peacefully with laws, institutions, and persons who do not share our most basic values. As part of this, we should refrain from labeling our adversaries with such epithets as “godless” or “bigot.”

Those who advocate nondiscrimination policies that others oppose on religious grounds sometimes call their religious objectors “bigots.” This name-calling assumes that a bigot is anyone whose religious views are in opposition to the name-callers. Ironically, the traditional dictionary definition of a bigot is “a person who is utterly intolerant of any creed, belief or opinion that differs from his own.”[27] Religious expression should not be shouted down as bigotry by those who fit that definition themselves.

Of course we will have differences that must be resolved. But those differences must not be allowed to obscure the undeniable reality that we are fellow citizens who need each other and who can resolve our differences through mutual respect, mutual understanding, and, where necessary, by compromise or by the rule of law.

As to the rule of law, all should acknowledge the validity of and submit to those laws that have been sustained by the highest available judicial authority. It is worth remembering that even the great practitioners of civil disobedience such as Mahatma Gandhi and Martin Luther King were willing to suffer the consequences of arrest and punishment required by the laws they were challenging. It is almost always better to try to live with an objectionable law than to be lawbreakers who contribute to the anarchy a young lawyer named Abraham Lincoln anticipated when he declared, “There is no grievance that is a fit object of redress by mob law.”[28]

Foremost among those who must submit to the law are the public officials in the executive and judicial branches who enforce and interpret the laws. All such officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to override the law to further their personal beliefs—religious or otherwise. Government officers must exercise the defined responsibilities of their public offices according to the principles and within the limits of civil government.

The principle of obedience to law by government officers was violated last year when a Kentucky county clerk invoked religious reasons to justify her office’s refusal to issue marriage licenses to same-gender couples. Earlier in these remarks I mentioned far more significant violations of the rule of law and democratic self-government: a governor and an attorney general refusing to enforce or defend a law they opposed on personal grounds—secular or religious. Constitutional duties, including respect for the vital principle of separation of powers, are fundamental to the rule of law. Neither the government nor its citizens should tolerate veto of a law (either its text or its operation) by officials not constitutionally authorized to veto it.[29]

The first step toward a cease-fire in the culture wars is to try to understand the other side’s point of view. I liked the balanced way a Deseret News editorial of a year ago characterized the competing considerations:

Sadly, recent events have highlighted how avoidable conflicts between religious liberty and nondiscrimination principles are exacerbated when advocates for nondiscrimination paint people of faith as bigots, and when people of faith fail to appreciate the brutal history of the basic human rights of marginalized groups, such as gays and lesbians.[30]

A second step is to avoid leading out with nonnegotiables or extreme positions. Both sides in these controversies should seek balance, not total victory. For example, believers should not seek a veto over all nondiscrimination laws that offend their religion, and the proponents of nondiscrimination should not seek a veto over all assertions of religious freedom that impinge on nondiscrimination. Both sides in vital controversies like this should seek to understand the others’ positions and seek practical accommodations that provide fairness for both and total dominance for neither. My favoring of fairness for all moves me to offer some reflections relevant to each side in this contest.

I speak first to those who advocate the maximum free exercise of religion. Believers should remember that there are two different systems of law: divine and civil. While believers revere divine law, they should also acknowledge that civil law is also ordained of God. The Lord Jesus Christ directed, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21). So taught, we must, to the extent possible, obey both systems of law. When there are apparent conflicts, we must seek to harmonize them. When the two prove to be truly irreconcilable, we should join with others of like mind in striving to change the civil law to accommodate the divine. In all events, we must be very measured before ever deciding—in the rarest of circumstances—to disregard one because we feel compelled by the other.

I say to my fellow believers that we should not assert the free exercise of religion to override every law and government action that could possibly be interpreted to infringe on institutional or personal religious freedom. As I have often said, the free exercise of religion obviously involves both the right to choose religious beliefs and affiliations and the right to exercise or practice those beliefs. But in a nation with citizens of many different beliefs, the right of some to act upon their religious principles must sometimes be limited by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizen’s person or property from neighbors whose intentions include taking human life or stealing in circumstances purportedly rationalized by their religious beliefs.

I now speak to those for whom the ideal of nondiscrimination rivals or exceeds religious freedom. As the powerful principle of nondiscrimination has been accommodated in the law, many rank it above the constitutional guarantee of free exercise of religion, contending that religious freedom must be curtailed wherever it conflicts with nondiscrimination.[31] Accordingly, the Supreme Court decision establishing a constitutional right to same-sex marriage throughout the United States[32] is sometimes cited as creating a moral imperative to enact broad laws prohibiting discrimination against LGBT persons in numerous other circumstances.[33]

To those of this persuasion, I say please respect the laws that provide unique protections for believers and religious institutions. Most notable is the uniquely positioned First Amendment in the Bill of Rights, which singles out the “free exercise” of religion for special protection, along with free speech, free press, and freedom of assembly. The favored constitutional treatment of religion, speech, press, and assembly is based on their paramount significance in the founding of our nation and the necessity of protecting them to perpetuate all of Americans’ freedoms. As a result, actions amounting to expression are given unique protections in our law. Similarly, religion has an honored and uniquely favored place in our public life. The First Amendment framers’ guarantee of “free exercise of religion” rather than just “freedom of conscience” shows an intent to give unique protections to actions in accordance with religious belief.

How, then, do we seek to resolve the differences described? Although highly exceptional impositions may sometimes dictate otherwise, I begin with a bias against going to court. I know the shortcomings of that route. I have served in the judicial branch—long ago as a law clerk in the United States Supreme Court and more recently as a justice on the Utah Supreme Court. With that experience, I prefer the route of lawmaking through the state legislatures.

We all know that the courts are the final fallback and that the boundaries of religious freedom are rigorously policed by litigating organizations like the Becket Fund for Religious Liberty. But in policy making, litigation should not be the first recourse. Courts are limited to resolving the specific cases before them. They are ill suited to the overall, complex, and comprehensive rule making that is required in a circumstance like this contest between two great forces. On the one hand we have what is perhaps a majority in our society seeking nondiscrimination and on the other hand a group advocating the religious freedom that is a precious “first freedom” in our constitution.

I find great wisdom in the observation of Martha Minow of the Harvard Law School. In her influential article on this subject she concludes that “accommodation and negotiation can identify practical solutions where abstract principles sometimes cannot.”[34] She observes that this approach “is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.”[35]

For example, in last year’s head-on conflict over individual free exercise and enforced nondiscrimination in housing and employment, the Utah Legislature crafted a compromise under the banner of “fairness for all.” It gave neither side all that it sought but granted both positions benefits that probably could not have been obtained without the kind of balancing that is possible in the lawmaking branch but not in the courts. The so-called “Utah Compromise” was not a comprehensive treatment of all of the controversies, but it was a start—a path-breaking beginning. Hopefully, its example will gradually encourage trust and accommodation among competing points of view.

V. The Importance of Civility

In this country we have a history of tolerant diversity—not perfect but mostly effective at allowing persons with competing visions to live together in peace. Most of us want effective ways to resolve differences without anger and with mutual understanding and accommodation. We all lose when an atmosphere of anger or hostility or contention prevails. We all lose when we cannot debate public policies without resorting to epithets, boycotts, firings, and other intimidation of our adversaries. We need to promote the virtue of civility.

In this presidential election year, which has brought “a new low in name-calling and a new high in yelling,”[36] I like the Christian Science Monitor’s insight on civility. We should apply it to the current contest between nondiscrimination and religious freedom.

When employed in word or action, civility is not just polite manners or a social lubricant. Nor does it always lead to compromise on an issue or the acceptance of an opponent’s position. Its strength lies in allowing a voice for minority views or a marginalized group, a situation everyone may be in someday. It allows old assumptions to be challenged by new arguments and evidence. …

Civility is a virtue of civilization, to use a term that relies on the same root. It allows a politician to call out a lie without naming someone a liar: It treats opponents as worthy of heavenly thoughts rather than destined for ‘a special place in hell.’ It opens a door for dialogue rather than shutting it with shouts and slurs.[37]

The first generation of Christians were taught, “If it be possible, … live peaceably with all men,” and “follow after the things [that] make for peace” (Romans 12:18; 14:19). In furtherance of my apostolic calling, I conclude by quoting from a message I gave at our worldwide conference 18 months ago. Its title was “Loving Others and Living with Differences.”

On the subject of public discourse, we should all follow the gospel teachings to love our neighbor and avoid contention. Followers of Christ should be examples of civility. We should love all people, be good listeners, and show concern for their sincere beliefs. Though we may disagree, we should not be disagreeable. Our stands and communications on controversial topics should not be contentious. We should be wise in explaining and pursuing our positions and in exercising our influence. In doing so, we ask that others not be offended by our sincere religious beliefs and the free exercise of our religion. We encourage all of us to practice the Savior’s Golden Rule: ‘Whatsoever ye would that men should do to you, do ye even so to them’ (Matthew 7:12).

When our positions do not prevail, we should accept unfavorable results graciously and practice civility with our adversaries. In any event, we should be persons of goodwill toward all, rejecting persecution of any kind, including persecution based on race, ethnicity, religious belief or nonbelief, and differences in sexual orientation.[38]

I advocate the same to this audience, believers and nonbelievers, and say let us pursue our goals with the civility that serves our citizenship and is obedient to our faiths.