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Additional Resource —  16 April 2014

Transcript: Hope for the Years Ahead
by Elder Dallin H. Oaks

Orem, Utah — 

Elder Dallin H. Oaks is a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. The following address was delivered at Utah Valley University's Constitutional Symposium on Religious Freedom on 16 April 2014.

It has been 30 years since I left the legal profession to assume my present duties. The invitation to give the keynote address at this symposium on religious freedom calls me out of legal retirement to speak in a non-Church forum. In this circumstance some will see me as a Church authority, but on this occasion I do not speak of Church doctrine. On a vital public issue, I speak in behalf of all religious people, and that is a significant majority of Americans. Recent Gallup Polls show that 90 percent of Americans say they believe in God,[1] and 40 percent say they attend religious services regularly and religion is an important part of their daily life.[2]

This will not be a technical talk on the details of the evolving legal rules that define the boundaries of religious freedom. I will not even comment on any of the many important cases now in the federal courts. My long absence from the active practice of the law disqualifies me from this. What I am qualified to do on the basis of over 60 years as a participant or knowledgeable observer of church and state is to offer some perspectives and hopefully some wisdom on this important area of constitutional law and public policy.

I. Some Memories Brought Current

I recall my last legal lecture, given at DePaul University’s Center for Church/State Studies in March 1985. For me, that was a transition from my service on the Utah Supreme Court, in which capacity I had accepted the invitation, to my service in my present calling, in which capacity I delivered the lecture. Its title was “Separation, Accommodation and the Future of Church and State.”[3] My conclusion was that in the long run there would be an equilibrium between the separation of church and state, which is policed by the First Amendment’s prohibition against an establishment of religion, and the accommodation of religion, which is assured by the guarantee of the free exercise of religion. Specifically, I suggested that if constitutional law permitted an increase in government support of religion, the equilibrium would be restored by the law’s permitting an increase in government regulation and taxation of religion. After measuring that hypothesis against Supreme Court rulings current at that time, I concluded that the constitutional scales seemed to be moving toward an equilibrium that emphasized accommodation. This would permit increased government support for religious activities and correspondingly permit increased government regulation, especially of church-related business activities. In that circumstance, churches and religious practitioners would need to protect their interests more frequently through legislative lobbying.[4]

Knowledgeable observers can cite individual cases that now run counter to this prediction, but for me it represents a generally accurate forecast of the movement of church-state law in the 30 years since I offered it.

I wish I could give a similarly sound forecast for the next 30 years, but I lack the legal foundation to do so. What I can do, and what I now propose to do, is to comment on some current legal arguments of long-range concern. I will also identify some general principles whose application provides hope for the future. Despite the concerns I will recite first, my final conclusion is a message of hope.

II. Current Concerns

The First Amendment guarantees of freedom of speech and free exercise of religion are the twin guarantees of the conditions of freedom that are at the foundation of our nation. Unfortunately, there are reasons to be concerned about the current practical vitality of each of these guarantees.

A.    Free Speech

I speak first of free speech. I believe we live in a time of diminishing freedom of speech—not the formal free-speech doctrine declared by the United States Supreme Court, but the extent of free speech enjoyed by citizens in their daily lives. Ironically, this occurs at a time when technology has extended the impact of speech far beyond what could have been imagined even a few decades ago. But what kind of speech? I fear that free speech is diminishing as a result of the chilling effect of mostly invisible restraints, even censorship.

We are feeling increasing restrictions on unpopular views and unwelcome facts. Some of these restrictions are imposed by politically correct editorial censorship in the media and professional journals. In academic employment, free speech is diminished by hiring decisions that discriminate against persons who hold or are presumed to hold unpopular views. In a variety of other settings, free speech is diminished by the forces of political correctness. Free speech is also chilled by organized boycotts to use the marketplace to punish unpopular persons or messages.

In case these generalities are unclear, I offer these selected examples of the way free speech is being punished or chilled by organizational restraints or punitive action.

        1.   New laws that criminalize so-called hate speech and administrative actions that enlarge the categories of targeted communications.

        2.   Scholars’ inability to publish unpopular facts and opinions in professional journals and academic sanctions or pressures imposed on various professors who have succeeded in publishing unfavored material.

        3.   Pressures imposed on colleges and universities and their professors by professional associations and accrediting bodies bent on furthering various dogmas of political correctness.

        4.   Campus speech codes.

These impositions on free speech are inconsistent with what is best in our American legal tradition. Although they often invoke the popular rhetoric of rights and equality, in the end these impositions erode the vital protections of freedom of thought, choice, and expression. This erosion is unworthy of the ideals of our nation. It diminishes the light in our beacon of freedom to the entire world.

Another example, very personal to me, are the boycotts, firings, and intimidation that accompanied the Proposition 8 election in California. As to that, I am pleased to note that more than a dozen prominent leaders of various faiths and positions condemned these actions in a large ad in the New York Times. It included these words:

“Some of the violence is being stoked by public statements denouncing the LDS for merely participating in the debate at all—as if that were somehow illegal. . . . It is perfectly appropriate . . . that all voices be heard. That is a basic point of democracy: The proper response to free speech you disagree with is your own speech in reply, not attempting to coerce your opponents into silence.”[5]

This ad, under the title “No Mob Veto,” concluded with a commitment to oppose anyone who resorted to “the rhetoric of anti-religious bigotry.” That sentiment, which ought to be acted upon promptly in our time of instant communication, applies not only to the religiously motivated but also to anyone who takes a position on a controversial social issue. The recent firing of a prominent corporate executive who made a $1,000 donation to the Proposition 8 campaign six years ago[6] is another unfortunate example of the bullying and intimidation that too often seeks to censor speech in the public square.

I now turn to limits on free speech that are directly focused on religion.

Some current theories assert that religious speech is less deserving of protection than other types of speech. Without detailing the obvious, I merely maintain that our constitutional freedom of religion is intended to be guaranteed not only by the free exercise of religion but also by the companion guarantee of freedom of speech. That principle was voiced by the United States Supreme Court in a near-unanimous 1981 case where the Court ruled that “religious worship and discussion” are “forms of speech and association protected by the First Amendment.”[7] Thus, these great guarantees are cumulative, strengthening one another.

Unfortunately, recent crimes in other parts of the world by religious-motivated persons have created an environment in which the international guarantees of free speech and freedom of religion seem to be in opposition. This can occur when believers respond with violence to words or images that offend them, such as in recent Muslim reactions to films, cartoons, or writings that discredit the prophet Mohammed.

European lawmakers are struggling to balance these competing interests without diminishing free speech or diluting the freedom of religion. It is a daunting effort that might perhaps be avoided by following the ancient wisdom that it is easier to make friends than to make laws. With patience and mutual understanding, most such issues can be resolved by appealing to each side to tone down their rhetoric and their responses. From the standpoint of religion, it will often be better to forego legal remedies against persons who insult the faith rather than to weaken the freedoms of speech and press that should be more important in the long run as means to promulgate and defend the faith.

B.    Religious Freedom

I am one of many religious persons who have decried the alarming trajectory of theories, court decisions, and executive actions that are diminishing the free exercise of religion.

One theory attempts to reduce the reach of the guarantee of the free exercise of religion by deeming it redundant in view of the assumed adequacy of the guarantee of free speech.[8] When a similar argument was recently made in the United States Supreme Court, the Court declared that argument “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”[9]

Similarly, I insist that the Framers deliberately provided two guarantees for the protection of religious freedom.

A larger threat is the way various official actions at the state and federal level are overshadowing the free exercise of religion by making it subordinate to other newly found “civil rights.” The recent Hosanna-Tabor case gives comfort against that threat. There the Supreme Court, with unanimity uncommon in any constitutional litigation, invoked both the free exercise and establishment clauses in upholding a religious autonomy claim against the argument that federal anti-discrimination legislation should trump a religious employer’s right to terminate a ministerial employee.[10]

I could comment further on these attempted incursions on religious freedom, but for the reasons stated at the outset I believe I should forgo comment on all such arguments except one. As it happens, the argument I have chosen for comment has figured in various recent court decisions on same-sex marriage, but that is not the reason I have chosen it. I comment on this particular legal argument because of its relationship to free speech and because of its obvious importance to your constitutional symposium on religious freedom.

Many years ago Russell Kirk noted that the American Civil Liberties Union had taken the position that any pro-life abortion law was illegitimate because it must necessarily be founded on religious belief.[11] At the time I thought that position preposterous, since it would make illegitimate most of western society’s criminal laws and family laws. Today the incredible claim that laws cannot be based on religious morality seems to be gaining respectability. It is being introduced to the law in various ways, including the assertion that public debate should be limited to so-called public reason.

For its proponents, “public reason” is the only legitimate way of speaking or acting in the public square, including public policy debates and lawmaking. And public reason is defined in such a way as to exclude religious values, because religion is said to be a private rather than a public matter.[12] Applying this theory—widely discussed in academic discourse and now emerging in court opinions—religious voices, values, and motivations are being crowded out of the public square. They are becoming an unacceptable basis for legal or policy argument on public issues and even for citizen referenda or legislative lawmaking. Religion is being marginalized to the point of censorship or condemnation.[13] That is the large issue I have chosen to elaborate as my major concern for the free exercise of religion.

The idea that religious voices, values, and motivations are off-limits in public discussion or lawmaking is applied selectively by its opponents. Consider our history. As I said at another religious liberty function:

“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.”[14]

Religious insights and values are just as important today as they were 50 or 100 years ago. As Elder Quentin L. Cook said recently:

“In our increasingly unrighteous world, it is essential that values based on religious belief be part of the public discourse. Moral positions informed by a religious conscience must be accorded equal access to the public square. . . .

“Religious faith is a store of light, knowledge, and wisdom and benefits society in a dramatic way when adherents engage in moral conduct because they feel accountable to God.”[15]

A companion technique for pushing religious values off the public square is to dismiss them on the ground that they are irrational or that they reflect impermissible animus (hatred). Part of that technique is to magnify the allegations of animus with sufficient rhetoric to conceal or omit consideration of the very real secular reasons that support the position. This kind of argumentation is evident in several recent judicial opinions that I refrain from citing because I wish to concentrate on the technique, not the opinions.

A consequence of the technique I have criticized is not only to diminish religious freedom, but also to diminish freedom of speech. Accusations of bigotry or animus leveled at those who promote an adverse position have a chilling effect on speech and public debate on many important issues. Both freedom of speech and freedom of religion are jeopardized when their advocates are disparaged as being motivated by hatred. Those who have sincere questions about the wisdom of a particular proposal—questions unrelated to religious doctrine or values—will be strongly deterred from rational dialogue if they perceive the risk of being branded as bigoted or hateful. This also happens when religiously grounded moral beliefs or values are swept from legal consideration by any other means. As the Supreme Court stated in its landmark case sustaining the right to refuse to salute the flag:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[16]

It surely demeans free speech to reject it in a public setting because of the assumed motives of the speaker. The same result follows if speech is disqualified according to stereotypes affixed to the speaker. Rejecting one’s right to be heard in official communications because of a stereotype replays an evil episode from one of the darkest periods of our Supreme Court’s history. In its 1857 opinion in the case of Dred Scott, the United States Supreme Court polarized the nation and propelled it toward civil war by ruling that a black African person, whether bond or free, had no right of access to the federal courts.[17] I see a parallel between denying judicial access to a person on racial grounds and excluding public consideration of a person’s opinions on religious grounds.

I submit that religious leaders and religiously motivated persons should have the same privileges of speech and participation as any other persons or leaders and that churches should stand on at least as strong a footing as any other corporation when they enter the public square to participate in public policy debates. The precious constitutional right of free speech does not exclude any individual or any group, and the exercise of that right with religious speech is especially protected in view of the companion guarantee of the free exercise of religion.

III. Reasons for Hope

Despite the legal challenges and seeming momentum of efforts and trends against free speech and free exercise as they apply to religious motives, religious speech, and religious organizations, I am optimistic in the long run. I am like the character in Rodgers and Hammerstein’s South Pacific, who sang:

I have heard people rant and rave and bellow

That we’re done and we might as well be dead,

But I’m only a cockeyed optimist

And I can’t get it into my head.[18]

I rely on the guarantees in the First Amendment to our nation’s constitution and on the fact that the constitutions and laws of more than half of our states still have significant religious liberty protections. I also rely on the fact that our nation’s Religious Freedom Restoration Act (RFRA) also continues to provide significant religious liberty protections against the United States government. But beyond these legal guarantees there are many other reasons for optimism in the long run.

A.    Increasing Recognition of the Importance of Religious Freedom

One reason for optimism is that the threats to religious speech and religious freedom have become so notorious that our citizens are beginning to be concerned. A recent study showed that one-fourth of all Americans consider religion to be the most threatened of the First Amendment freedoms.[19] Citizens are beginning to understand that the free exercise of religion and the freedom of speech protect religious people as well as religious organizations. Concerned persons are beginning to initiate the legal actions necessary to expand the underdeveloped law of religious freedom.

On the subject of religious freedom, leaders of various religious denominations—Catholic, Jewish, Muslim, Protestant, and The Church of Jesus Christ of Latter-day Saints—are coming together in unprecedented ways. New organizations and informal coalitions are operating to defend religious freedom. Speakers on religious campuses and other gatherings are crossing denominational lines that were insurmountable a few years ago. Religious people are coming to see one another not as adversaries but as fellow worshipers who must unite to protect their freedom. At a recent talk I suggested that the most important contrast today is “between those who believe in God and seek to serve Him according to their best understanding and those who reject the existence of God.”[20] The reality, of course, is that freedom of speech and freedom of religion benefit all people, nonbelievers as well as believers.[21]

On the organizational front, we are pleased with the timely founding and remarkable success of such religious freedom advocacy organizations as the Becket Fund for Religious Liberty.

In the world of ideas, we are impressed with the remarkable number of academic centers in major universities focusing on religion and the law, especially religious freedom, which needs constant vigilance for its protection. The long list of these universities includes Brigham Young, Georgetown, Stanford (whose law school also includes a newly established religious liberty clinic), Utah Valley University, and the Witherspoon Institute at Princeton University. This representative but not exhaustive list understates university interest in this subject by failing to include the many journals on law and religion and the impressive number of professorships or programs in religious studies, such as Claremont’s, Utah State’s, and Virginia’s.

Another encouraging development in the world of ideas is the increased academic interest in finding ways to avoid an all-or-nothing approach to resolving the conflicts between civil rights nondiscrimination claims and the free exercise rights pursued by religious groups. For example, an influential article by now Dean Martha Minow of the Harvard Law School concludes that “accommodation and negotiation can identify practical solutions where abstract principles sometimes cannot.”[22] She observes that this approach “is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.”[23] Similarly, an amicus brief filed in the Supreme Court by the American Jewish Committee, while supporting same-sex marriage, urged that the Court reinstate free-exercise exemptions from generally applicable laws.[24] Hopefully such ideas will find the necessary judicial and legislative support to permit them to be applied and bear fruit.

There are also reasons for hope on the international scene. Professor Cole Durham, a respected international observer, sees a promising movement toward enhanced protection of religious freedom in many nations. Last June, the Council of the European Union adopted “EU Guidelines on the Promotion and Protection of Freedom of Religion.” Both the European Parliament and the United Kingdom have working groups specifically focused on this subject. Some of these groups are cooperating to form caucuses in various parliaments around the world. This type of consideration at important levels of government is likely to prove powerful in the world of ideas and politics.

B.    Calamities Can Strengthen Instead of Destroy

Perhaps this groundswell of interest in religious freedom confirms an intriguing hypothesis of one of the most creative social thinkers of the last century, Harvard University’s Pitirim Sorokin. He hypothesized that major social events viewed as calamities can set in motion movements that produce exactly the opposite of the expected result. Applying that hypothesis to religious movements, Sorokin wrote:

“Calamities generate two opposite movements in different sections of the population: one is a trend toward unreligiousness and demoralization; the other is a trend toward extreme religious, spiritual, and moral exaltation.”[25]

After reviewing religious and other history, Sorokin posted this general rule:

“The principal steps in the progress of mankind toward a spiritual religion and a noble code of ethics have been taken primarily under the impact of great catastrophes.”[26]

And so, for example, secular and religious histories have notable examples of spiritual growth and societal strength emerging from apparent calamities. For example, the world’s current commitment to human rights, including the right to freedom of religion, emerged from the calamity of World War II, where human rights had been cruelly suppressed.

C.    The Hope for Mutual Understanding and Accommodation

My last cause for hope is not tied to developments but to principles. I am optimistic about the long-term prospect of furthering the interests of all contending parties by mutual understanding and accommodation.

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. We all want to live together in happiness and harmony. We all want effective ways to resolve differences without anger or contention and with mutual understanding and accommodation.

There are points of disagreement between those who insist on free exercise of religion and those who feel threatened by it. Similar disagreements exist between those who insist on nondiscrimination and those who feel that some of its results threaten their religious liberty. There are no winners in such disagreements. Whatever the outcome in one particular case, other disagreements persist, and we are all losers from the atmosphere of anger and contention. In this circumstance of contending religious rights and civil rights, all parties need to learn to live together in a community of goodwill, patience, and understanding. We need to reawaken the “bonds of affection” that President Matthew Holland showed to be essential to the founding of our nation—“broadly shared ideas of biblical love, artfully refashioned into a guiding public principle.”[27] We need such broadly shared ideals.

To achieve our common goals we must have mutual respect for others whose beliefs, values, and behaviors differ from our own. This does not expect that we will deny or abandon our differences but that we will learn to live with others who do not share them. It will help if we are not led or unduly influenced by the extreme voices that are heard from various contending positions. Extreme voices polarize and create resentment and fear by emphasizing what is nonnegotiable and by suggesting that the desired outcome is to disable the adversary and achieve absolute victory. Such outcomes are rarely attainable and never preferable to living together in mutual understanding and peace.

I believe one important way to move forward is to minimize talk of rights and to increase talk of responsibilities. From the standpoint of religion, I urge my fellow believers to remember that the scriptures contain very little talk of rights, only commandments that create responsibilities. Others, who choose to reason in pragmatic terms, should remember that we strengthen rights by encouraging the fulfillment of responsibilities.

Another way to move forward is to encourage a more general understanding of the reality that 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. We all have a vital interest in religion because religious belief in right and wrong is fundamental to producing the needed voluntary compliance by a large number of our citizens.

In expressing my hope for mutual understanding and accommodation, I am not an unrealistic dreamer. I believe that in time, with patience and goodwill, contending constitutional rights and conflicting personal values can be brought into mutually respectful accommodation.

In the public sector, these kinds of disagreements will not be resolved primarily by meetings or negotiations among individual contestants. There are too many interested parties, and none who can speak for all. Court contests will continue. Some decisions will help the effort of long-term conciliation and some will aggravate it. But in the long run, we have reason to hope that the guarantees and system of government established in our inspired constitution will see us through these controversies as with others in times past.

At the personal level, disagreements must be resolved slowly, between individual contestants, among neighbors, and even within families.

In the public sector and in our personal lives, the important decisions will not be in our courts but in our hearts. I refer to the hearts and behavior of a great number of individual men and women—Americans in every walk of life.

IV. Conclusion

In conclusion, I reaffirm my conviction that this is a time for hope, the kind of hope described by my dear friend and colleague Elder Neal A. Maxwell:

“Real hope is much more than wishful musing. It stiffens, not slackens, the spiritual spine. It is composed, not giddy, eager without being naïve, and pleasantly steady without being smug.”[28]

Such hopes can only be realized by concentrating on what we have in common, by striving for mutual understanding, by treating all our neighbors with goodwill, and by exercising patience. It is a time of hope for mutual respect and accommodation, but it is up to you and me to make it happen.

 


[1] “More Than 9 in 10 Americans Continue to Believe in God,” June 3, 2011; see http://www.gallup.com/poll/147887/americans-continue-believe-god.aspx.

[3] DePaul L. Rev. 1-22 (1985).

[4] Id., at 21.

[5] “No Mob Veto,” New York Times, Dec. 5, 2008.

[6] Nick Bilton and Noam Cohen, “Mozillas Chief Felled by View on Gay Unions,” New York Times, Apr. 3, 2014.

[7] Widmar v. Vincent, 454 U.S. 263, 269 (1981).

[8] See, for example, Mark Tushnet, The Redundant Free Exercise Clause? 33 Loy. U. Chi. L.J. 71 (2001); James W. Nickel, Who Needs Freedom of Religion? 76 U. Colo. L. Rev 941 (2005).

[9] Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S._, 132 S. Ct. 694, 706 (2012).

[10] Ibid.

[11] Russell Kirk, “We Cannot Separate Christian Morals and the Rule of Law,” Imprimis, Apr. 4, 1983 (Hillsdale College).

[12] For example, John Rawls, Political Liberalism (Columbia University Press, 2005), 224-25.

[13] See Stephen L. Carter, The Culture of Disbelief, ch. 11 (New York, Basic Books, 1993).

[14] Dallin H. Oaks, “Strengthening the Free Exercise of Religion,” Speech at the Becket Fund for Religious Liberty Canterbury Medal Dinner in New York City, May 16, 2013, available at http://www.mormonnewsroom.org/article/transcript-strengthening-free-exercise-of-religion-elder-dallin-h-oaks.

[15] Quentin L. Cook, “Let There Be Light!” Ensign, Nov. 2010, 29.

[16] West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

[17] Dred Scott v. Sandford, 60 U.S. 393 (1857). There are many books on the Dred Scott case. I have used Doris Kearns Goodwin, Team of Rivals (Simon & Schuster, 2005), 188-89, and Mark L. Shurtleff, Am I Not a Man (Valor Publishing Group, 2009), 482.

[18] Rodgers and Hammerstein, South Pacific, “A Cockeyed Optimist.”

[19] “Survey Fact Sheet: Americans’ Views on Religious Freedom,” American Religious Freedom, Dec. 2, 2011. available at http://religiousfreedom.org/research/detail/survey-fact-sheet-americans-views-on-religious-freedom.

[20] Dallin H. Oaks, “Witnesses of God,” BYU-Idaho Devotional, Feb. 25, 2014; see http://www.mormonnewsroom.org/article/witnesses-of-god.

[21] See, for example, Rodney Stark, America’s Blessings: How Religion Benefits Everyone, Including Atheists (Templeton Press, 2012).

[22] Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws? 48 B.C.L. Rev. 781, 849 (2007), http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2364&context=bclr. Contending parties can sometimes agree on practical solutions even while continuing to disagree on their underlying premises.

[23] Id., at 783.

[24] The brief was filed by Professor Douglas Laycock of the University of Virginia Law School and others in the Hollingsworth v. Perry and United States v. Windsor cases (2013).

[25] Man and Society in Calamity (New Brunswick, NJ: Transactions Publishers, 2010, originally published 1942), 161.

[26] Id., at 226. I am indebted to a book by Mary Eberstadt, a senior fellow at the Ethics and Public Policy Center, for calling this important hypothesis to my attention. Chapter 9 of her book, How the West Really Lost God (2013), reviews other scholars whose work supports Sorokin’s hypothesis, which Eberstadt puts forward in her “Case for Optimism.”

[27] Matthew S. Holland, Bonds of Affection (2007), 5.

[28] Neal A. Maxwell, “Brightness of Hope,” Ensign, Nov. 1994, 35.

Style Guide Note: When reporting about The Church of Jesus Christ of Latter-day Saints, please use the complete name of the Church in the first reference. For more information on the use of the name of the Church, go to our online style guide.

 
 
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