Monday, February 7, 2011

Alma vs. Oaks: Religion in Civil Society

At another time in my life, I, like most members of the Church, would read what Elder Oaks has said about religious freedom in modern American life and, given that he had an impressive legal career prior to becoming an apostle, assume that he was making valid points that were not only inspired, but based solidly in American constitutional law and tradition.  That was at another time in my life.  I have since repented.

This past Friday, Dallin Oaks gave a speech at the law school of Chapman University in California, entitled “Preserving Religious Freedom.” A news article summarizing the speech is available here and the complete transcript of the speech is available here.  Though I have a legal background, I am not learned in constitutional law and do not propose to comment on Elder Oaks speech from that perspective.  But I do not think one needs to be a constitutional scholar to take issue with the basic points that Oaks makes in his address.  Since he conveniently summarized them at the conclusion of his remarks, I will use these (set out below in bold) as an outline for my comments, heading various sections with his summary points.

One could respond to Elder Oaks’ speech from a number of different perspectives and in a number of different ways.  I have chosen to analyze Oak’s comments within the context of a comparison of Elder Oaks’ views on the role of religion in civil society to those of Alma the Younger.  Those familiar with the Book of Mormon will remember that, in the first chapters of the Book of Alma, Alma was serving as both high priest of the church as well as chief judge, thus combining ecclesiastical and political power in one person.  Because of growing iniquity in the church, however, he eventually decided that he needed to do something. 

Interestingly, however, Alma did not choose to use his political power to enforce standards of morality among his people.  Rather, he resigned as chief judge and devoted himself to preaching to the members of the church, “seeing no way that he might reclaim them save it were in bearing down in pure testimony against them … confin[ing] himself wholly to the high priesthood of the holy order of God, to the testimony of the word, according to the spirit of revelation and prophecy” (Alma 4:19-20).

After discussing Elder Oaks’ comments, I would like to return to Alma’s actions in order to compare the way in which Alma chose to address societal “immorality” and lack of belief, versus the positions that Elder Oaks advocates.

Oaks Point #1:  “Religious teachings and religious organizations are valuable and important to our free society and therefore deserving of their special legal protection.”

As support for this proposition, Elder Oaks basically makes the argument that religious organizations do a lot of good work in society and teach people to be moral, which in turn supports a stable society and, hence, government.  Because of these services, Oaks argues, religious organizations and teachings deserve special legal (as opposed to simply cultural) protection.  Among many other things, implicit in Oaks’ statements is that religious speech (i.e., teachings) deserves special legal protection, above any other kind of speech – an important foundation for the rest of his arguments. 

Oaks treats his proposition as self-evident, needing no basis in law or tradition – which he does not in fact cite.  Rather, after treating his point as self-evident, he goes on to decry the deterioration of faith in society and implies that this situation provides even more justification for his position.

But why, in fact, should religious organizations, let alone religious teachings be granted special legal protection in 21st- century American society?  This is the question that Oaks does not answer.  Given that this assertion is the foundation for the rest of his arguments, it deserves careful and critical scrutiny.  I will leave this to others.  For the purpose of this post, I will simply contrast this approach to the legal status afforded religion with that described in the first part of the Book of Alma as pertaining to Nephite society.  Alma did not seek legal buttressing of his preaching; rather he approached the issue from the opposite perspective:  he viewed his preaching as buttressing the legal framework of society.

Oaks Point #2:  “Religious freedom undergirds the origin and existence of this country and is the dominating civil liberty.”

Again this assertion, at least the first half of it, sounds totally reasonable on first hearing.  But I find the combination of the historical role of religious freedom with the assertion that it is the “dominating civil liberty” disingenuous and, some might argue, insidious.  The acknowledgement of the first half of the assertion is apparently intended to lend credence to rather striking assertion that religious freedom is the “dominant liberty” in the panoply of individual rights guaranteed by the Bill of Rights.

Oaks offers no scholarly support for this assertion.  He cites one document, a report prepared in 1999, but does not identify the authors.  Once again, he makes an extremely broad assertion with no authority, treating his conclusion as self-evident.  He concludes this section of his speech with a statement which strikes me as breathtaking in its scope:  “I maintain, that in our nation's founding and in our constitutional order religious freedom and its associated First Amendment freedoms of speech and press are the motivating and dominating civil liberties and civil rights.” 

Once again, I leave it to others to discourse in a more scholarly fashion on the many implications of this statement.  I will simply point out that I find this assertion extraordinary and dangerous, if for no other reason that it purports to again hand organized religion a “trump card” that ensures that freedom of religion trumps every other right guaranteed to American citizens under the Constitution.

 Oaks Point #3: “The guarantee of free exercise of religion is weakening in its effects and in public esteem.”

The bulk of Oaks’ speech is directed to a discussion of this point.  Having established, in his view, that religious teachings and organizations deserve special legal protection and that freedom of religion (including the all-important right to exercise one’s religion) is the “dominant” civil right, Oaks launches into a lengthy discussion of how the right to exercise (whatever that term means) one’s religion is under assault in modern America.  I will focus on only a few of Oaks’ comments, particularly those having to do with gay rights. 

Before launching an attack on gay rights advocates, Oaks plainly highlights one of the main themes of his address:  “Religion must preserve its preferred status in our pluralistic society in order to make its unique contribution—its recognition and commitment to values that transcend the secular world” [emphasis added].  He then refers to comments that Cardinal Francis George made when speaking at BYU in 2010, who spoke of “threats to religious freedom in America that are new to our history and to our tradition,” one of these being “the development of gay rights and the call for same-sex 'marriage.'"

Oaks describes a number of examples of how he feels that religion has been denied its place in the “public square” by gay rights advocates.  In the process, he manages to totally distort the entire debate between those who seek equal civil rights for gays and those, such as the LDS Church, who seek to deny, on religious grounds, these civil rights.  In addition to his previous assertions that religious organizations and beliefs should enjoy special legal protection and that freedom of religion is the “dominant” civil right, he now claims that the act of those who assert civil rights for gays is an attack on the freedom of religion (and must therefore be quashed).

“Along with many others,” said Oaks, “I see a serious threat to the freedom of religion in the current assertion of a “civil right" of homosexuals to be free from religious preaching against their relationships. Religious leaders of various denominations affirm and preach that sexual relations should only occur between a man and a woman joined together in marriage. One would think that the preaching of such a doctrinal belief would be protected by the constitutional guarantee of the free exercise of religion, to say nothing of the guarantee of free speech.  However, we are beginning to see worldwide indications that this may not be so.  Religious preaching of the wrongfulness of homosexual relations is beginning to be threatened with criminal prosecution or actually prosecuted or made the subject of civil penalties.”

Almost all of the examples cited by Oaks of such “prosecution” involve persons who are trying to assert personal religious beliefs in governmental or quasi-governmental environments.  In other words, these individuals have been called out by gay rights advocates for trying to use their public positions to espouse their own individual beliefs.  So, not only does Oaks apparently believe that freedom of religion can be used as a “sword” (enjoying special legal protection and status) in public debate, it can also be used as a “shield” to protect it from responsibility for its actions and comments in the “public square” (a classic case in point being the Church’s involvement with Proposition 8). 

 Oaks Point #4:  “This weakening [of religious freedom] is attributable to the ascendancy of moral relativism.”

This point is pretty much self-explanatory:  Oakes decries the “rise” of moral relativism and the corresponding decrease of respect for organized religion.  He then concludes with this statement:

The preservation of religious freedom in our nation depends on the value we attach to the teachings of right and wrong in our churches, synagogues and mosques. It is faith in God—however defined—that translates these religious teachings into the moral behavior that benefits the nation. As fewer and fewer citizens believe in God and in the existence of the moral absolutes taught by religious leaders, the importance of religious freedom to the totality of our citizens is diminished. We stand to lose that freedom if many believe that religious leaders, who preach right and wrong, make no unique contribution to society and therefore should have no special legal protection.”

Correct me if I’m wrong, but it sure seems to me that Elder Oaks is essentially saying that the fact that more and more people in society have less and less respect for organized religion militates even more strongly for a special legal protection being given to the “unique contribution” that organized religion makes to society.  Nothing seems plainer to me, however, that the intent of the Founders was to ensure that organized religion did not enjoy a privileged place in American society.  Rather, religion was to do its thing, and government was to do its thing.  Period.

Put another way, Elder Oaks’ assertions appear to put new garb on the age-old practice of trying to legislate morality: rather than simply having the government do organized religion’s bidding, organized religion seeks special protection and status within society to advance its agenda.

Oaks concludes by calling for a “broad coalition” to defend religious liberty, as he sees it:  “All that is necessary for unity and a broad coalition along the lines I am suggesting is a common belief that there is a right and wrong in human behavior that has been established by a Supreme Being.”  The question, of course, is who decides what that right and wrong is, and how much privilege, deference and protection are religious organizations and beliefs to be accorded in society in advancing “religious” views of right and wrong.


There you have it.  Most members of the Church will cheer Elder Oaks’ comments without giving them any serious thought.  The bells and whistles, the catch-phrases, the code words are all there, triggering emotional responses that evoke that often-deadly mix within many members of patriotism, faith and blind obedience. 

But I maintain that if thinking members of the Church would step back and consider the lesson of Alma from the Book of Mormon, as well as the ramifications of the central doctrine of the plan of salvation (free agency), they could not help but be deeply troubled by Elder Oaks’ comments.  If organized religious organizations would do as Alma did, i.e., confining themselves “wholly to … the testimony of the word, according to the spirit of revelation and prophecy” then they would fulfill the task which Elder Oaks ascribes to them – without needing special status, privilege or protection in civil society.


  1. I find this topic interesting as it relates to prior general authority talks on the consequences of “agency” (it seems they dropped the word “free” after a general conference talk which argued that agency wasn’t “free” because it was Christ who provided this for us, and our actions are never free from consequences. Never mind that “free” in the context of agency meant that we were not acting on behalf of others [as a government or insurance agent would], but that we act solely on our on behalf).

    Elder Oaks seems to argue that the religious voice should not only be free to say whatever it feels is the word of God, but they should also be able to choose the consequences of that free speech. Elder Oaks’s speech, although erudite in its construction, seems to me to be nothing much more than a rant against the very negative vocal response it has received from large sections of society. He seems to be saying, “Don’t get mad at us when we call you names.”

    Church leaders have every right to preach whatever they feel is the word of God. They can believe that plural marriage is a requirement to attain exaltation; they can argue as McConkie did that black people were less valiant in the pre-existence; and they can preach that our Heavenly Father loves us so much that he would never make people gay. I absolutely believe they have the right to advocate their beliefs. But I also know that no one can choose what the consequences will be of preaching hate disguised as “gospel.”

  2. "At another time in my life, I, like most members of the Church, would read what Elder Oaks has said about religious freedom in modern American life and, given that he had an impressive legal career prior to becoming an apostle, assume that he was making valid points that were not only inspired, but based solidly in American constitutional law and tradition. That was at another time in my life. I have since repented." Well described! It has been a new experience for me to discover fallacious reasoning by respected apostolic voices (Christofferson, Faust, and Oaks) in the past year or so. The discovery for me came when the presumption of impressive legal career + apostolic call = right on with constitutional conclusions was eliminated and I started to critically consider claims. I think most of Oaks's conclusions are very well supported- but they are far from ineluctable.

    One of the main difficulties of giving religious speech and conduct a trump card is that one still has to respond to and manage what others CLAIM as religious speech and conduct. How do you distinguish religious from non-religious speech or conduct? The courts already make this distinction, and in defining what religious speech or conduct is and isn't, they quite literally carve out what counts as religious and what does not- in which case judicially-defined religion is established above religion that falls outside of the judicially-drawn lines. Say, for instance, an individual refuses to file an income tax because her religious belief forbids "subsidizing Mammon," while another individual refuses to perform an abortion because of religious belief? Which, neither, or both gets to play the religious trump card? If it is one but not the other, is not this precisely the respecting of one religion over another forbidden by the first amendment? If you believe religion deserves special status, you'll have to police the boundaries of what religion is. Who is the policeman, and what are his guidelines?

    Second, how does one balance competing religious teachings? Say one church believes in same-sex marriage. Should another church's contrary belief make it appropriate for a justice of the peace to refuse, citing religious conscience, to marry a same-sex couple? Again, a decision will be made in one direction or another which, again, legally favors one religion over another. Because elevated legal privilege attends the profession of religious belief, the state is incentivizing being religious over being non-religious. This presumes that the world will be at a net loss if religion is not privileged. Given the abundance of institutions that can serve the very functions Elder Oaks emphasizes (such as moralizing the population), this assertion is difficult to maintain, especially if religious belief and conduct is narrowly construed.

    Also, if religious freedom is so vital, then why does the Board of Trustees ask thousands of naive teenagers to contract it away when they come to BYU? There are hundreds of non-LDS students at BYU. A Baptist BYU student may convert to Mormonism without penalty. An LDS student who converts to being a Baptist immediately and automatically loses the ability to graduate, despite being otherwise fully in compliance with the honor code ("disaffiliation from The Church of Jesus Christ of Latter-day Saints automatically results in the withdrawal of the student's ecclesiastical endorsement and the loss of good Honor Code standing.") This trick has been pulled before- by the Puritans:

  3. "The International Law and Religion symposium[7] is held on BYU’s campus every year, bringing in delegates from far-off countries to promote religious freedom across the world. Am I the only one to observe the irony that this significant religious freedom symposium takes place on soil where choice of religion and religious practice are both heavily burdened? The church has lately placed immense emphasis on the issue of religious freedom, as evidenced, for example, by[8]: 1) “Religious Freedom,” Elder Dallin H. Oaks, Brigham Young University-Idaho, 13 October 2009; 2) “The Threatened Demise of Religion in the Public Square,” Elder Lance B. Wickman,
    J. Reuben Clark Law Society, 11 February 2010; 3) “We Are All Enlisted,” Elder Russell M. Nelson, To the Young Adults of the Boston and Hingham Stakes, 10 June 2010; and 4) His Eminence Francis Cardinal George of the Catholic Church, during a speech at Brigham Young University: “Catholics and Latter-day Saints: Partners in the Defense of Religious Freedom,” 23 February 2010 (I was there for the devotional, which kind of blew me away- Cardinal George was far more educated, articulate, and apperceptive than I had predicted).

    “Now I would that ye should remember that God has said that the inward vessel shall be cleansed first, and then shall the outer vessel be cleansed also.” (Alma 60:23)

    Wouldn’t it make sense to ensure robust religious freedom first at BYU before seeking to teach the world what religious freedom means? The honor code policy is instead reminiscent of the Puritans, who left persecution by the Church of England only to rigidly prohibit religious freedom in their own communities upon reaching the Americas:
    “The Puritans were not fighting for religious freedom when they opposed the established Church of England. They were fighting for the right to replace that authority with one of their own. Democracy, religious toleration and separation of church and state were equally distasteful to the ruling elders. From the start, the Bay Colony confined voting to members of the approved Puritan churches, denied freedom of speech to its opponents and insisted that all persons subject themselves to the authority of its magistrates.
    The life of the colony and of its people, the clothes they should wear, the length of their hair, their labors and pastimes, were all supervised and regulated in accordance with the clergy's interpretation of the scriptures.[9]” The Massachusetts Bay Colony was especially noted for its persecution of Quakers, with the Plymouth Colony and some other Connecticut river colonies not far behind."

  4. This all comes back to the issue of at what point do we want religious liberty to trump other liberties. Latter Day Saints certainly did not want the predominant protestant/Catholic beliefs about marriage trumping their own beliefs regarding polygamy back in the 1900's, nor do I want any other faith's belief's trumping my civil rights.

    Religion must be religion. Law is needed as a control. We have to have laws to deal with situations where one person harms another. ie., murder, rape, theft, fraud. But no one has ever presented to me a wonderful argument on how one gay man/woman's right to marry another gay man/woman interfere's with their rights.

    They of course, immediately jump to arguments regarding society in general.

    Religion in general has been its own worst enemy throughout history. Give them numbers, give them power, then they become the enforcer. History is replete with examples.

  5. @Brad - Thanks for your detailed comments, both here and on FB. You present some excellent points. As was discussed in a meeting I was at last night, the United States differs from many countries around the world in that it still gives religious organizations the power to perform civil marriages. Most European countries, for example, require a civil marriage prior to sealing in the temple.

    I was not aware of some of the points you make about the BYU Honor Code. Thanks as well for bringing these to our attention.

    @Joe Conflict - Excellent point regarding polygamy. Again, as you point out, religion cannot have it both ways, i.e., enjoy separation from state, yet seek protection from state. It must stand on its own, and that is the point I was making regarding Alma's example.

  6. @Utahhiker - You make some excellent points and touch on a part of Elder Oaks' speech upon which he devoted the most time, i.e., "attacks" by others against religious organizations or persons advocating their personal religious views.

    In a democratic and pluralistic society, there must be protections afforded individuals against bigotry and prejudice disguised as religion. As you say, religion has free speech, but it must be held responsible for such speech. Our courts have tried to draw lines around what is and is not acceptable "religious" speech; a particularly obnoxious example would be the church that spews hatred against homosexuals at military funerals.

    But, again, what I think is important is that freedom of religion not be allowed to "trump" other civil liberties, such as equal protection under the law. Thus, when religious speech advocates unequal treatment under the law, religious freedom of speech must not be allowed to simply trump equal protection; the courts should treat religious freedom as one among a number of civil rights and liberties guaranteed under the Constitution.

  7. Brilliant post. Wonderfully engaging comments. Thanks Invictus!

    I'm working on a post of my own, in part sparked by Oaks' speech and the discussions that have followed. So look for more comments on my blog.

  8. Thanks, Pablo. I'll definitely look forward to reading your thoughts.

  9. Dude, that old guy's not hot at all! I'm SO skipping this post. ;-)

  10. P.S.: See Rob Donaldson's excellent posts addressing the issues raises in Elder Oaks' address at