Elder Lance B. Wickman Speech at J. Reuben Clark Law Society

Elder Lance B. Wickman Speech at J. Reuben Clark Law Society

Additional Resource

The Crucible: The Atonement, Moral Agency, and the Law

Elder Lance B. Wickman
General Counsel, The Church of Jesus Christ of Latter-day Saints

J. Reuben Clark Law Society Event, February 17, 2017

I

Introduction

No topic has been treated more frequently in recent years in gatherings of LDS lawyers than that of “religious freedom.” It seems that every meeting of the J. Reuben Clark Law Society features multiple addresses and panel discussions on the subject. And this is in addition to seminars and symposia sponsored by law schools and bar associations. Members of the Quorum of the Twelve Apostles—notably Elders Dallin H. Oaks, Robert D. Hales, Jeffrey R. Holland, Quentin L. Cook, D. Todd Christofferson, and Ronald A. Rasband—have spoken on the subject in a variety of settings. Those addresses have been published and republished.

Recently, the Church has sponsored regional multistake religious freedom conferences, featuring Elder Oaks, other Church leaders, and even lawyers. The first of these was held last September in Dallas, Texas, involving 25 stakes. Just a month ago, another such conference was held in Phoenix, Arizona, for 80 stakes! The purpose of these conferences is to help members understand what religious freedom is, why it is so important, and what each of us can do to foster and defend it. Overwhelmingly, member reaction to these meetings has been very positive.

It has been my privilege to participate in each of these conferences. In my remarks in both Dallas and Phoenix, I approached the subject of religious liberty from a civics perspective. I have spoken about the “hard work of citizenship” that the Constitution demands of each of us in this participatory republic. I have spoken as a citizen to fellow citizens.

When I have addressed the subject of religious liberty in these law society meetings in the past, I have spoken as a lawyer to fellow lawyers. Some have suggested that tonight I repeat what I have said in these recent conferences or in past law society meetings.

Tonight, however, I would like to take a different tack. I speak this evening not just as a lawyer, but as a Latter-day Saint. I would like to explain why the First Presidency and the Quorum of the Twelve Apostles are raising such concerns, both among Church members and among the general population, about threats to religious liberty. Challenges to our doctrines and beliefs are not a new phenomenon. Sexual immorality, substance abuse, abortion—these are just a sampling of numerous practices that conflict with the principles of the restored gospel. So why give such vigorous, high profile attention to challenges to religious liberty, of all things, which many people believe is already a widely accepted civic virtue?

And here is a related question worth addressing. Why is our Latter-day Saint perspective on religious liberty somewhat different than that of some others in the religious community?

The answer to both questions, my dear friends, is grounded in the Atonement of Jesus Christ and the moral agency granted to us by the Lord so we can claim its eternal benefits. Stated concisely, religious liberty helps preserve the benefits of the Atonement to each soul because it protects moral agency in matters of faith. It is this agency that is the crucible—the fiery furnace of adversity and decision—in which we determine our eternal destiny. It is the crossroads, and sometimes the “cross,” where each of us decides whether or not to choose Christ and His commandments. Exercising that agency is the very purpose of mortal life. Protecting that crucible, therefore, is vital to salvation and the great plan of happiness. If the exercise of that agency is compromised, the conditions of our repentance and forgiveness likewise risk compromise.

Some well-meaning people speak of religious liberty as if it should be a license to do almost anything their religious sensibilities prefer. Some invoke their “conscience” to demand broad freedoms for what are mostly just personal preferences informed by religion. But for us, who understand the basic principles of the restored gospel, religious freedom is much more than that. It protects our agency, our divine right to choose to follow Jesus Christ. It secures our right to exercise faith, repent, make and keep sacred covenants, raise our children in the faith, worship together, and preach the gospel. But our fundamental freedoms also protect the right of others to make a different choice. Moral agency—that right to choose Christ or not—is the great crucible of this mortal experience. Law—religious liberty—exists to preserve and protect it, for us and for all.

Being here in Philadelphia reminds us that but a few short blocks from this very spot are those precincts within which were forged the foundation of the civil rights that protect that crucible. In 1776 at the Continental Congress and again in 1787 at the Constitutional Convention brave and visionary men brought with them the flame, the bellows, and the forge of revolutionary ideas from which were hammered those principles of liberty.

So, this evening, I would speak of that crucible of moral agency and the law that protects it. I have titled these remarks “The Crucible: The Atonement, Moral Agency, and the Law.”

II

Moral Agency in a Probationary State

Let me begin with a review of some basic doctrine. In the premortal realm, a grand council was convened. God the Father, the Great Elohim, gathered about Him His vast spiritual posterity. We were there—you and I. As every mortal parent should appreciate, even with our limited, finite understanding, He wanted only the best for His children. Indeed, His deepest desire was to confer upon each and every one of us the infinite blessings of His greatest possible gift—eternal life and exaltation. He had a plan—a redemption plan, if you will—for conferring these blessings. The purpose of this council was to present His plan and to obtain our concurrence.

Unlike mortal probate proceedings, conferring this matchless gift was nowhere near as simple as just making out a will and then passively dispensing these riches under the benevolent supervision of the Great Judge. No, there were conditions that needed to be satisfied first. The very majesty of the gift He sought to confer requires that, as His heirs, we had to qualify for these blessings. We had to become like Him. Our spiritual bodies needed to be cloaked in physical ones, and, once in that physical state, we had to choose to be like Him—to submit to His will—and to do so under circumstances where there really was a choice. Those were to be the conditions of our inheritance—conditions that we enthusiastically embraced.

But not everyone did. There was vigorous opposition to His plan by some. They advocated an easier way. They wanted the majesty—the power and influence—of Elohim without the qualifying steps. “Why risk it?” they in effect said. We will forfeit the agency—the right to choose—just give us the blessings anyway. They would not, or could not, understand that exaltation can be attained only by offering our “whole souls as an offering unto” God (Omni 1:26)—not as slaves, but freely, as “agents unto [our]selves” (Moses 6:56). Thus, they fell victim to the perfidious sophistry of Lucifer, described in scripture as a “son of the morning” (Isaiah 14:12), whose real goal was to rob God of His power and subject all to his will. In a tragic, irreversible exercise of agency in that “first crucible,” his followers were willing to forfeit their agency to Satan, who sought to lead us “captive at his will” (Moses 4:4), rather than follow the plan of our Heavenly Father, who sought only to liberate and exalt us. And so they were cast out, preceding the rest of us to this telestial sphere. Here they would wander, unadorned with physical body, condemned forever by the tragically unwise choice they had made while still in the presence of God.

The conflict in the premortal realm between the plan put forward by Elohim and Jehovah and the opponents to that plan, led by Lucifer, did not end when Satan and his minions were cast out. Only the venue has changed. That same conflict continues to rage in this mortal sphere. Lehi taught that “there is an opposition in all things” (2 Nephi 2:11). The opposition of Lucifer and his legions to Elohim’s plan is what created the opportunity for meaningful choice between good and evil, right and wrong, as we each take our turn on earth. It provides the “second crucible” in which we exercise our agency to follow or reject Heavenly Father’s plan.

But as each of us knows all too well from exquisite personal experience, choosing the right under the conditions of mortality is anything but easy. Temptations abound, and Lucifer seems always lurking in the shadows of life. We make mistakes. We commit errors of judgment. We succumb to his enticements. We commit sin. And so, again quoting Lehi, “there is no flesh that can dwell in the presence of God, save it be through the merits, and mercy, and grace of the Holy Messiah” (2 Nephi 2:8). A Savior is needed, one willing to step forward and make divine amends for our poor decisions and associated miseries. And a probationary time is also required—a time to prepare to meet God, a time to claim the blessings the Savior extends to us.

We are indebted to a young, temporarily errant missionary named Corianton for what may be the most profound sermon ever preached regarding the interaction of justice, mercy, and moral agency in this probationary state. The sermon was by his father, Alma, who taught that this probationary—or preparatory—state is a “time granted unto man to repent, yea, a probationary time, a time to repent and serve God” (Alma 42:4). He then explained the interaction of justice and mercy in this preparatory state:

“Therefore, according to justice, the plan of redemption could not be brought about, only on conditions of repentance of men in this probationary state, yea, this preparatory state; for except it were for these conditions, mercy could not take effect except it should destroy the work of justice. Now the work of justice could not be destroyed; if so, God would cease to be God. …

“And now, the plan of mercy could not be brought about except an atonement should be made; therefore God himself atoneth for the sins of the world, to bring about the plan of mercy, to appease the demands of justice, that God might be a perfect, just God, and a merciful God also” (Alma 42:13, 15; emphasis added).

Alma then declares this profound axiom of moral agency: “Therefore, O my son, whosoever will come may come and partake of the waters of [eternal] life freely”(Alma 42:27, emphasis added). Whosoever will come may come—divine love and grace in five words! It is a matter of choice! Justice and mercy—the two grand principles of eternity—are placed in equipoise by “God himself [who] atoneth for the sins of the world.” Thus, the playing field in this mortal sphere is perfectly leveled for the exercise of moral agency—this right to choose “eternal life, through the great Mediator of all men, or to choose captivity and death, according to the captivity and power of the devil” (2 Nephi 2:27). Whosoever will come may come!

Jesus Christ came to atone for sin. His matchless sacrifice and Resurrection were a divine gift and overcame both physical and spiritual death. Immortality was a free gift to all. But exaltation—overcoming spiritual death and returning to God’s presence—was conditioned on our choosing to live a righteous life, as defined by Him. Again quoting Lehi, “Adam fell that man might be; and men are, that they might have joy” (2 Nephi 2:25). The joy of which Lehi spoke would come only from making righteous choices. Hence, moral agency became the great fulcrum—or, as I have already suggested, the crucible of the mortal experience. How we exercise it will determine our eternal destiny.

This is such basic doctrine—so well known to each of us here—that I will not dwell further on it. I call attention to it as a reminder of the axiom that the exercise of moral agency is the purpose of mortality. It exists for every son and every daughter of God. Each has the God-given right to make basic moral choices. That right is not subject to your idea, or my idea, or anyone else’s idea of what the “correct” choices are.

III

Moral Agency and the Law

Man’s law exists fundamentally to protect that agency. The law of which I speak that protects moral agency is lodged in more than a single amendment to the Constitution. It is woven into the very fabric of the entire structure of representative government with its separation of powers and checks and balances that was forged but a stone’s throw from this hall. It exists in myriad statutes and court decisions. Let me cite just one illustration of the importance of the law to the exercise of moral agency.

Christ’s doctrine requires repentance in order to enjoy the blessings of His Atonement. Repentance requires the confession and forsaking of sin (see D&C 58:43). Lesser infractions of the commandments allow this “confession” to be done privately to the Lord in one’s own chamber. Coupled with partaking of the sacrament, repentance is complete as one moves ahead with renewed commitment to obedience.

But more serious transgressions, such as adultery or child abuse, constitute a fracturing of sacred covenants. When that occurs, the transgressor is powerless to repair the damage on his own. The broken covenants sever him from the promised blessings of the Atonement of Christ. A common judge is needed—a bishop or stake president—who has the authority to sweep away the broken fragments through Church disciplinary proceedings. Thus, the way is opened for the transgressor, in due time, to repent and make the essential covenants anew. In such circumstances, the confession to the common judge is critical to eventually obtaining forgiveness.

The law of virtually every state and the law in some other countries protects the sanctity of such private conversation between bishop and penitent. Without that legal protection—that assurance that intimate confidences will be preserved from legally required disclosure—some transgressors would not seek out the help of their common judge. Thus, they would remain in that awful state of limbo, as though no redemption had been made for them. Though their God-given moral agency remains intact, their ability or incentive to exercise it has been compromised.

The sacred space occupied by bishop and transgressor is a vital manifestation of the crucible that is moral agency. Without law to protect its sanctity, that crucible is at risk.

IV

The Two-Sided Coin

Without really thinking about it, when we speak of “religious liberty” we are almost always thinking of our own rights. The connection between that sacred principle of moral agency and our own right of choice is so natural to us as to be virtually second nature. Such connectivity can rather quickly lead to an “us” vs. “them” mentality when we encounter someone whom we think wants to tread on our freedom. It is all too easy to retreat into a kind of moral defense bunker where our narrow perception is that we can only “win” if that “someone else” “loses.” This kind of “zero sum game”—or brinksmanship—thinking presents a particularly insidious risk to moral agency because it posits only “winners” and “losers.” In the processes of constitutional government, where legislative and judicial decisions are made, an attitude that no compromise can be brooked is much like a gambler who places all his chips on the table in an all-or-nothing gamble. In that circumstance, one may risk the freedom to exercise his agency altogether in an effort to protect every conceivable claim of freedom.

But it need not be so. Nor should it. A hymn reminds us: “Know this, that every soul is free to choose his life and what he’ll be; for this eternal truth is given: that God will force no man to heaven” (Hymns, no. 240; emphasis added). It is so apparent to us seated here that many of God’s children make choices that we would not. But we remember too that this is their God-given right. As the rest of that hymn further reminds us, God will “guide, persuade, direct aright, and bless with wisdom, love and light, in [numerous] ways be good and kind, but never force the human mind.”

The Prophet Joseph Smith had a very expansive view of moral agency and religious freedom. He described agency as “that free independence of mind which heaven has so graciously bestowed upon the human family as one of its choicest gifts” (Teachings of the Prophet Joseph Smith, sel. Joseph Fielding Smith [1976], 49). And to the Council of Fifty, he stated that government should act upon “the broad and liberal principle that all men have equal rights … and that every man has a privilege in this organization of choosing for himself voluntarily his God, and what he pleases for his religion” (Council of Fifty, Minutes, Apr. 11, 1844).

In explaining how we reconcile the exercise of our own agency with another person’s exercise of his or her agency, Elder Dallin H. Oaks has used the metaphor of the two-sided coin. Said he:

“Tolerance for behavior is like a two-sided coin. Tolerance or respect is on one side of the coin, but truth is always on the other. We must stand for truth, even while we practice tolerance and respect for beliefs and ideas different from our own. We should all be edified and strengthened by the Savior’s example of speaking both tolerance and truth; kindness in the communication but firmness in the truth” (“Truth and Tolerance,” MormonNewsroom.org, September 11, 2011).

Stated differently, we need not agree with another’s choices, even though we respect his right to make them. Seeking to preserve the free exercise of our own moral agency, we must within appropriate limits respect the other fellow’s right to do likewise.

V

Priorities in the Law

All of this now brings me back to the law of religious liberty and how we should view it. In that regard, there are at least two corollaries to be drawn from our Latter-day Saint doctrines of the Atonement and moral agency.

Conscience. The first of these has to do with what freedom of conscience really means. For Latter-day Saints, moral agency—the right of each person to choose—is the core of conscience. Moral agency is an eternal principle; it is not merely a matter of legal rights. Religious liberty exists when secular government aligns with this eternal principle of the right to choose. Doctrine and Covenants 134:2 declares: “We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience [or moral agency]” (emphasis added).

In short, freedom of religion is grounded in much more than just our own right to act according to religiously based preferences. True freedom of conscience is grounded in the ability to choose between good and evil in the actions of our own lives, allowing others to have that same choice in theirs.

And yet, not everyone agrees. Some people of faith believe that religious liberty is nothing more nor less than the right to act entirely based on one’s “conscience,” which they define as a private set of moral principles about how everyone should act, even if others must bow to those choices. It is true that the law should embrace a system of moral values. In the ideal, law enshrines principles of right living promulgated and endorsed by the Lord.

However, the reality is that in this world the law rarely reaches the ideal. Mosiah taught that in a perfect world, “just men” serving as “kings … would establish the laws of God, and judge [the] people according to his commandments” (Mosiah 29:13). But the world is not perfect, and history teaches that the kings of this world have more often been tyrannical than just. So, in the alternative, the Lord inspired representative government where people of widely disparate views are meant to come together in a spirit of compromise to reach for the ideal while maintaining the dignity of moral agency for all. Compromise, not edict, is the guiding principle by which we govern ourselves.

We and other people of faith share a similar set of moral values; we champion a legal code that fosters these values. We become alarmed when we see some in society advocating measures that seem antithetical to divine commandments. In such times, some wonder how they can possibly be required to acknowledge and accommodate behavior by someone whom they regard as following a different god, or even no god at all. “Religious liberty,” they exclaim, must be defined to protect them from any and all such encroachments—as a matter of conscience.

Yet in a democracy where compromise frames the rule of law, the notion of “conscience” must be more than a matter of forcing one’s own concept of “moral principle” on others; it must be more than just personal discomfort with allowing space so others can make their choices. Latter-day Saints understand that religious liberty is primarily about preserving our right to choose Christ and live His gospel—especially the right to participate in saving ordinances and to make and keep sacred covenants. And for us, respect for that same principle of agency impels us to grant reasonable tolerance to others to choose differently. Our “conscience,” therefore, finds expression in securing our own fundamental choices about how to live, not in opposing theirs.

A hierarchy of religious liberty values. This leads to the second corollary to the doctrine of moral agency, which is that not all religious liberty claims are “created equal.” Necessarily, there are differing priorities. If the law exists to preserve moral agency—both for us and others—and if law is created through the give and take of a representative democracy, then it naturally follows that there must be a hierarchy of religious liberty interests. This hierarchy distinguishes between those interests that matter profoundly and those that are not as important. Here I would like to incorporate a portion of what I said at the Phoenix religious liberty conference a month ago.

The innermost core. Certain freedoms are at the core of religious liberty because they lie within a fundamentally private sphere. On these freedoms, there is not much room for compromise. They include freedom of belief; freedoms related to family gospel teaching and worship; freedom to express your beliefs to another willing listener, such as missionary work; freedoms related to the internal affairs of churches, including the establishment of Church doctrine, the selection and regulation of priesthood leadership, and the determination of membership criteria; and the freedom to build temples and meetinghouses within the framework of fair and reasonable zoning and land-use regulations. These rights include the same right of free speech and expression in the public square as any other citizen; the freedom to publish beliefs; the freedom to debate public policy, including controversial matters; and the freedom to petition the government for protection of one’s interests. These are the freedoms inherent in American citizenship and are nonnegotiable.

Near the core. Next is a cluster of rights very near the core. These include the right not to be punished, retaliated against, or excluded from one’s profession or employment based solely on one’s faith. America has no religious test for public office. Similarly, there should be no religious test for working in the various professions regulated by the government. Those with traditional beliefs regarding marriage, family, gender, and sexuality should not be excluded from being professional counselors, teachers, lawyers, doctors, or any other profession where the government grants licenses.

Rights of religiously important nonprofit organizations. Near these core interests are freedoms that relate to religiously important nonprofit functions carried on by religious organizations and religious schools, colleges, and universities. Religious nonprofits should have the freedom to have employment policies that reflect their religious beliefs, including the freedom to hire based on religious criteria. Religious colleges should have the freedom to establish honor codes that reflect their religious teachings. Religious charities should have the right to conduct their good works according to the dictates of their respective faiths.

Moving beyond the core. However, as we move beyond these core interests into more commercial settings, our expectations of unfettered religious freedom must be tempered. This is not because commerce is unimportant but because it overlaps with what for decades have been considered civil rights, such as the right not to be discriminated against in employment or denied service at a place of public accommodation based on certain characteristics. Claims by business owners for religious freedom are strongest in small, intimate and family business settings and correspondingly weaker in large and impersonal corporate settings. It is in these commercial settings where defenders of religious freedom sometimes must be willing to make prudential compromises.

The outer circle. Finally, there are zones beyond these priorities where claims for religious liberty are much weaker and will be very difficult to defend. Some of these pertain to government services, where officials are required by law to perform certain functions. In these areas, religious beliefs should be reasonably accommodated, but other governmental interests may significantly limit the degree of accommodation. For instance, if it is your job to issue marriage licenses as an employee in the county clerk’s office and no one else can easily take your place, then your freedom to refuse to issue licenses for marriages that are contrary to your religious beliefs may be very limited.

“In summary, there is a hierarchy of religious freedoms, and we have no choice but to set priorities. Those that relate to private and ecclesiastical contexts, or are part of the rights of all citizens, are the most basic and least subject to compromise, while those that relate to commercial and governmental settings will of necessity require greater pragmatism and compromise.”

 

VI

Philadelphia

It is no mere coincidence that the religion clauses are the first to be mentioned in the Bill of Rights. They declare religious freedom to be our “first freedom.” All other civil rights—freedom of speech, press, assembly, etc.—buttress this “first” freedom. It is first because it guarantees the most basic of all liberties, the right to choose whether to exercise faith in Christ and follow God’s plan. Freedom of religion is much more than merely denominational, i.e., whether to be a Christian, Jew, or Muslim; a Mormon, a Catholic, or a Methodist. It is the freedom to belong to no denomination at all. It is the freedom to define one’s own life creed. It is the freedom to order one’s life according to one’s core spiritual convictions.

That this right of choice is what the Constitution was inspired to provide is made clear by the Lord Himself:

“That every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.

“Therefore, it is not right that any man should be in bondage one to another.

“And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood” (D&C 101:78–80; emphasis added).

And so, as I bring these remarks to a close, I am drawn back to this place, Philadelphia. Sometimes referred to as the “Cradle of Liberty,” it is a sacred place, even if it has been paved over and profaned in some respects in the centuries since the founding. To many, Independence Hall seems small and irrelevant, overshadowed as it is by great skyscrapers and lost in the cacophony of traffic sounds and noises of this bustling city. But it was here in 1776 that men came to pledge their “lives, [their] fortunes, and [their] sacred honor” in defense of moral agency. It was here that George Washington accepted command of the Continental Army. It was near here—at Valley Forge—that Washington and his pitiful little army strove to fend off starvation during the terrible winter of 1777–78. And it was here that the “Great Quartet” of Washington, Madison, Hamilton, and Jay and a handful of others met to forge the most remarkable, the most inspired charter of government ever to flow from the pen of man. In so doing, they established a bulwark of law around that divine crucible—moral agency.

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