Oaks on Religious Freedom

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Dallin Oaks, one of the LDS Church’s dozen Apostles, spoke last week on “Preserving Religious Freedom” at the Chapman University School of Law, and an interesting speech it was. Not least interesting was the way Oaks surrounded what he had to say with statements from non-Mormon religious authorities like Cardinal Francis George and Rabbi Harold Kushner. Mormons happily collaborate with those of other faiths on good works, but they won’t pray with them. Oaks’ readiness to use the word “ecumenical” creeps towards making spiritual common cause in a way that, to this eye, looks like something of a departure for LDS general authorities.

As for the substance of his remarks, Oaks fell rather interestingly between his religious bureaucrat’s stool, his sometime law professor’s chair, and his former seat on the Utah Supreme Court bench. Which is to say, into a somewhat awkward posture.

He begins with the debatable proposition that religious liberty is in trouble in America. The evidence he adduces mostly has to do with ways that religious institutions and individuals may be pressured to accommodate to social norms they oppose. If society recognizes same-sex relationships as legitimate, up to and including marriage, then it indubitably creates challenges for those who find such relationships morally unacceptable. But this is hardly a new thing in the history of American religious pluralism. An ordinance forbidding discrimination against same-sex couples in housing is hardly more burdensome than the Supreme Court’s 1890 Reynolds decision barring Mormon polygamy. Oaks does not so much as mention Reynolds, which shot down a central LDS religious practice.

He does recognize that the Court substantially weakened religious liberty in the 1990s, thanks to the Smith decision declaring that any neutral law of general applicability can trump a free exercise claim. But he doesn’t fix the blame for the decision where it belongs: on Antonin Scalia, who authored the opinion and led the judicial charge. That would call into question Oaks’ claim that it’s not recent jurisprudence but “moral relativism” (MR) that is responsible for undermining religious freedom today. No one would accuse Justice Scalia of MR.

In attacking MR, Oaks doesn’t claim that we all need to adhere to the same moral norms, but rather that it’s important for religious freedom that we believe that such norms are timeless and God-given. Why so? Moral absolutists throughout history have been happy to restrict the religious freedom of those who disagree with them. I’d rather have religious freedom depend on those committed to the sanctity of the individual conscience–like those moral relativists over at the ACLU.

In the meantime, I’d be interested in knowing how Apostle Oaks feels about that new piece of legislation introduced by state representative LaVar Christensen that would protect Utahns from prosecution for their religious beliefs–up to a possibly including the practice of polygamy.