It was not anti-religious as such

"It is important to note that while this aggressive intimidation in connection with the Proposition 8 election was primarily directed at religious persons and symbols, it was not anti-religious as such. These incidents were expressions of outrage against those who disagreed with the gay-rights position and had prevailed in a public contest. As such, these incidents of "violence and intimidation" are not so much anti-religious as anti-democratic. In their effect they are like the well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation."
-Dallin Oaks "Religious Freedom" Speech given at BYU-Idaho on 13 October 2009


It's been ten days since Dallin Oaks gave the speech quoted above at BYU-Idaho. According to a friend of mine, the speech was approved through official channels. So, once again, the officially-sanctioned word from the church seems to have stirred up far more controversy than I could have imagined would have occurred under Gordon Hinckley's watch.

The Salt Lake Tribune continues to weigh in, the Deseret News has weighed in (and the "Mormon Times" has discussed their initial coverage. Shoot, even the Davis County Clipper held a debate about the speech on their opinion page.

What's amazing to me is Oaks' double-speak here. He gives a speech entitled "Religious Freedom" and proceeds to cite examples of threats to religious freedoms, then, in a brief spasm of (partial) intellectual honesty, admits that the threats are actually not anti-religious at all, but are in fact "anti-democratic."

Perhaps Dallin's legal training betrayed him here. His approach to the subject is fairly common in legal writing: define the subject (or the law), frame the facts in terms of the law, then discuss the application of the law from multiple perspectives. The problem most law students (and Supreme Court justices, for that matter) have with this approach is the tricky task of framing the facts in terms of the law. The pitfall here invariably begins at the beginning: instead of objectively approaching the subject and drawing conclusions after applying the law to the facts, the overzealous advocate will begin by drawing a conclusion and then will attempt to rig the application of the law to the facts to fit the conclusion, making up for omitted and distorted facts and misapplied by dismissing them in the discussion.

Here's an example of Oaks' problematic writing and argument. Fairly early in the talk, Oaks provides his definition of religious freedom:

"The guarantee of the free exercise of religion, which I will call religious freedom, is the first expression in the First Amendment to the United States Constitution...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."

Then, and here's where Oaks stumbles (or intentionally conflates, take your pick), as he attempts to fit his definition in with the facts:

"The greatest infringements of religious freedom occur when the exercise of religion collides with other powerful forces in society. Among the most threatening collisions in the United States today are (1) the rising strength of those who seek to silence religious voices in public debates, and (2) perceived conflicts between religious freedom and the popular appeal of newly alleged civil rights."

Now, if religious freedom is (appropriately) defined as revolving around religious belief and practice, how, exactly, does participation in public debate concerning civil rights implicate religious freedom?

You see what Oaks has done here: he's conflated his asserted right to engage in public debate with his right to believe and practice his religion. He applied the law of free speech to the facts, then concluded that the law of the free exercise of religion applies.

Of course, for Mormons, proselytizing is a major part of their religious practice, and Oaks does assert that "We must insist on our freedom to preach the doctrines of our faith." To the extent that proselytizing requires participation in public debate, perhaps Oaks makes some sense.

The problem is that, in the case of Proposition 8, the LDS church's participation in public debate went beyond the free exercise of proselytizing and became the enforced tyranny of government-sanctioned coercion. That distinction is lost on church leaders like Oaks whose political consultations on issues like alcohol policy in Utah isn't a question of participation in debate, but rather simply the church telling the Utah Legislature what laws to pass.

And that's, of course, the distinction Prop 8 opponents have tried in vain to make clear to the LDS church. To us (having personally delivered to church headquarters a large stack of anti-Prop 8 letters addressed to Dallin Oaks, I think I have a right to include myself in that camp), the church's right to participate in public debate is bounded by the church's own admission that:

"We do not believe it just to mingle religious influence with civil government, whereby one religious society is fostered and another proscribed in its spiritual privileges, and the individual rights of its members, as citizens, denied." Doctrine and Covenants 134:9

Rather than simply standing up in the public square and proclaiming the church's belief that God only recognizes marriage between a man and a woman, Oaks would have the church claim the right to stand up and influence civil government so that the coercive power of the state enforces that standard, proscribing thereby the right of citizens who are not Mormons to marry the person of their choice.

These are potentially overlapping distinctions because a policy-maker (including a citizen voting on a Constitutional amendment), on hearing that God disapproves of same-sex marriage, may very naturally feel inclined to prohibit it as a matter of civil law.

The problem is that the LDS church has not framed their opposition to same-sex marriage in terms of their religious objections. As has been pointed out elsewhere, the church, for political reasons (and based on Gordon Hinckley's political instincts), chose very early on in the "public" debate regarding same-sex marriage, that LDS religious doctrines (concerning, say, plural marriage) would likely not be regarded as legitimate in favor of a particular policy (according to a leaked 1997 memo between Loren Dunn and Russell Ballard, the LDS church concluded that "the public image of the Catholic Church [was] higher than our Church."

So, is Dallin Oaks really saying the LDS church's right to religious freedom encompasses the right to preach their doctrines under the auspices of the Catholic church, when Mormon religious tradition has long condemned the Catholic Church as "the whore of all the earth" and "the church which is most abominable above all other churches" and which, in a supreme fit of irony, has "dominion over nations...and peoples"?

Or is Dallin Oaks saying that the LDS church's right to religious freedom encompasses the right to support, and place directors on the board of, a purely political, 501(c)(4) non-profit organization?

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Despite the Mormon church's protestations to the contrary, the fight for the civil right to marry the person of one's choice does not implicate religious freedoms in the slightest. No one, in any place whatsoever, is demanding that the LDS marry gay folks. No one is demanding that the LDS people adopt the belief that God sanctions same-sex marriage. The only objections anyone is raising against the LDS church are: 1) That the church is a fringe group of religious bigots; and 2) That the church's campaign against same-sex marriage has crossed the line from religious advocacy to the attempted establishment of a religious tenet to govern civil marriage in a plural society.

Neither of those objections are anti-religious. In fact, they are pro-democratic. In a democratic society, it is incumbent on those seeking civil rights to speak out against bigotry. Protests in front of LDS temples and the black-listing of Mormons who supported Prop 8 are not attempts to silence the LDS religious beliefs, but are rather manifestations of the right to free speech, the inviolate right and duty to call a bigot a bigot, in public, as part of public debate. They are not demands for the LDS church to stop talking, but are rather accusations of LDS bigotry, let the Mormons respond as they may. Similarly, complaints that Mormons and their surrogates in NOM are violating campaign finance and U.S. federal tax laws have nothing to do with LDS religious beliefs but are grounded in the firm and entirely pro-democratic belief in the constitutional protection against the establishment of religion (which Dallin Oaks conveniently refused to address) and the rule of law and the integrity of the electoral process.

Of course, the stolen Yes on 8 campaign lawn signs and the myriad threats and violence that reverberated after Prop 8 passed are certainly to be condemned as criminal and disruptive to civil order. It really is a stretch, however, to classify isolated criminal activities as a threat to religious freedom. Small-scale larceny and fist-fights accompany nearly every major political battle and election (I personally lost five election signs from my lawn, plus two bumper stickers, last fall), and while some might claim that these incidents threaten, e.g., the Democratic Party's right to free speech, hardly anyone would take such a claim seriously.

But I actually don't think Dallin Oaks really believes that the LDS church's religious freedoms are seriously threatened. The evidence he presented in his speech is so spare (i.e., a reference to an unnamed international non-profit and an assertion from a Christian Science Monitor opinion predicting that the coming century will be "very secular and religiously antagonistic," along with the infamously specious analogy of the Prop 8 backlash to Southern violence and intimidation against African-Americans) as to make laughable the proposition that he was seriously arguing any real threats to religious freedoms.

Rather, I think that Dallin's real fear is the threat growing secularism poses to church-based Christian establishmentarianism in the United States. It's the loss of dominion that Dallin Oaks fears, not the loss of any constitutional rights.

Elder Oaks is certainly free to argue that "Religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of Christianity in the public square without seriously jeopardizing our freedoms."

The rest of us are free to, and emphatically demand the continued right to freely and vocally, disagree.