The recent attempt by the Church of Jesus Christ of Latter-day Saints to seek common ground on questions of gay rights vs. religious rights has, in the main, generated far more hostility and criticism towards the Church than appreciation for the effort. The responses have shed light on one thing though: namely, how few people really understand the underlying principles involved, which ought to properly frame the debate. Herewith, some principles which ought to govern and be understood relative to the issues in question.
WHAT RELIGIOUS FREEDOM IS
Before we get started, let's define "religious freedom". If understood pursuant to the U.S. Constitution, religious freedom involves three core ideas: That there can be no religious test for a public trust (U.S. Const. Art. VI), that there can be no officially established state church (i.e., no "establishment of religion") (U.S. Const. Am. 1) and that there can be no legal infringement on one's right to the "free exercise" of religious belief and practice (U.S. Const. Am. 1). These legal concepts have numerous practical applications, which can be gleaned from the history which gave rise to the constitutional text, and the subsequent case law based thereon. Among these practical applications are these core principles of religious freedom:
-"Penalties are impertinent" if they are used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences." (John Locke 1689).
-"[N]o 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." (Justice Jackson, W. Va State Board of Education v. Barnette (1943)[emphasis added].)
-"Government may neither compel affirmation of a repugnant belief [i.e., a belief a particular citizen believes to be repugnant] nor penalize or discriminate against individuals because they hold religious views abhorrent to the authorities." Justice Brennan, Sherbert v. Verner (1963).
-"[G]overnment coercion of moral agency is odious." Gilardi v. U.S. (D.C. Cir. 2013).
With those statements of what religious freedom is as a starting point, let us look at some basic principles which govern the maintenance of religious freedom, and which Latter-day Saints need to understand.
WHAT INVIDIOUS DISCRIMINATION IS
There are many laws which potentially implicate religious freedom, but since the Church's recent effort to find common ground involved anti-discrimination statutes, and inasmuch as such statutes are increasingly involved in cases which test the limits of religious liberty (especially in light of new definitions of marrage which many religious believers find abhorrent) it is important to properly understand the legal standards involved in traditional anti-discrimination law. The term "discriminate" comes from a Latin verb, discrimire, which means "to separate, distinguish, or make a distinction." There is nothing inherently immoral about discrimination, understood as such ("he has very discriminating taste in French cuisine"). What is immoral is discrimination in which persons who are otherwise alike are treated as different, or unequal, on the basis of classifications which might prevent certain individuals from fully participating in society on an equal basis. Even that type of discrimination is not necessarily evil: if John prefers brunettes and refuses to date any blondes, or Julie refuses to date any one who is physically smaller than her, they may be denying themselves of meeting some really great marriage prospects, but that doesn't mean acting on their private preferences is immoral. However, if those private preferences spill over into areas that are less personal than dating, such as who they choose to employ, and if those preferences are based on irrational distinctions formed out of antipathy (as opposed to being based on rational grounds, such as choosing to hire a reporter whose ethnic background and language skills will allow him to understand communities which the newspaper serves), then "invidious discrimination" is involved. It is invidious discrimination, and only invidious discrimination, which the government may properly prohibit and regulate.
PRINCIPLES OF RELIGIOUS FREEDOM
1. From a Theological Perspective Few Principles in the Gospel Are More Fundamentally Important than the Doctrine of Religious Freedom: Bruce R. McConkie has put it thus: “Freedom of worship is one of the basic doctrines of the gospel. Indeed, in one manner of speaking it is the most basic of all doctrines, even taking precedence over the nature and kind of being that God is, or the atoning sacrifice of the Son of God, or the vesting of priesthood and keys and saving power in the one true church. By this we mean that if there were no freedom of worship, there would be no God, no redemption, and no salvation in the kingdom of God.” Bruce R. McConkie A New Witness for the Articles of Faith (Deseret Book, 1985) 655 (emphasis added). This is a fairly remarkable statement. But it makes sense. To allow the Atonement of Christ to be fully effective in our lives, we must enter into the covenantal ordinances which allow us to fully access the power of the atonement. If we live under a form of government which prevents us from entering into these covenants, we cannot fully partake of this power. Thus, as pointed out by W. Cole Durham, the doctrine of religious freedom is not more important than the other doctrines listed by Elder McConkie, but more "basic" (or fundamental) in the sense of being a prerequisite to the fulfillment of the other doctrines. In that sense, "it is the most basic because none of the other doctrines could become operative or have any meaning or authenticity if we did not have the option to choose them freely." W. Cole Durham "The Doctrine of Religious Freedom" April 3, 2001 BYU Devotional Address.
2. From a Civic Perspective, the Right of Religious Freedom Is Also of Fundamental Importance, as our "First Freedom": Freedom of religion has been called the "first freedom" both because it is listed in the First Amendment to the Constitution, but, more importantly, because it is a necessary precondition to our other civic rights. James Madison, the father of our Constitution, and of our Bill of Rights, stated this principle as follows, in his Memorial and Remonstrances Against Religious Assessments, written before the Constitution or the First Amendment:
"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And . . . every man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that . . . Religion is wholly exempt from [Civil Society's] cognizance."
Robert P. George, Chairman of the U.S. Commission for International Religious Freedom, has explained the precedent nature of religious freedom as involving the fact that this freedom is typically the first to fall, leading almost inevitably to the failure of subsequent societal rights and benefits as well: ". . . societal well-being tends to suffer when religious freedom is unprotected. Politically, religious freedom abuses are linked with abuses of other human rights. Economically, religious persecution can marginalize the persecuted, causing their talents to go unrealized and robbing affected countries of added productivity and abundance. Civically, whenever religious liberty is violated, nations surrender the benefit religious beliefs may yield through the molding of character which enables the responsible exercise of citizenship. Socially, wherever freedom of religion is abused, peace and security may be threatened, affecting these societies and in some cases the security of the United States and the world."
3. The Right to Religious Freedom is a Constitutional Right. As noted above, the right to religious freedom is listed in Article VI of the Constitution (prohibiting any religous test for a public office or a public trust -- such that it would be unconstitutional, for example, for a State which had chosen to contract with a Catholic adoption agency for the public trust of arranging adoptions, to terminate that contract and prohibit and restrict the agency from continuing to perform this function, on the grounds of the agency's religious beliefs) and in the First Amendment to the Constitution, which prevents government from enacting any law relating to an establishment of religion (i.e., government cannot establish an official State church, -- such that it would be unconsitutional, for example, to require citizens to agree to orthodox belief systems, or to require citizens to attend and participate in a Catholic Mass or a same sex wedding ceremony, if doing so violated the citizen's beliefs) or prohibiting the free exercise of religion by individual citizens (under the "free exercise" clause -- such that it would be Unconstitutional, for example, to prohibit a citizen from engaging in certain religiously motivated conduct, such as invoking God in a Valedictorian speech).
4. When in Conflict, Constitutional Rights Potentially Preempt Statutory Rights, not Vice Versa. It is among the most fundamental concepts of American law that the U.S. Constitution proscribes what is and is not valid law. It does this procedurally by establishing the methods for enacting new laws, but, more to the point for present purposes, it does so substantively, by regulating and restricting the ability of Congress and (by extension under the privileges and immunities clause of the 14th amendment), the ability of state and local governments as well, to pass certain laws at all, if they violate the rights against such laws enumerated in the Constitution, especially (but not exclusively) in the Bill of Rights. Based thereon, the test of any statutory law is whether it infringes upon rights guaranteed in the Constitution, or is valid or invalid under the Constitution's proscriptions. It is the burden of those who would uphold a statute to prove that said statute is consistent with the Constitution, not the other way around. The Constitution trumps any statute which violates the Constitution, and any statute which does so is subject to being declared invalid and expunged from the books. The reverse is not true: a constitutional principle cannot be trumped by a statute. Gay rights advocates understand this, which is why they have been running into various federal courts to claim that any laws which affirm or maintain the long-standing definition of the pre-political institution known as marriage are unconstituitonal. They are wrong, of course (Baker v. Nelson, 409 U.S. 810, 93 S.Ct 37 (1972)), but in this context they at least understand the nature of the test which must be met, and the opportunity which constitutional tests potentially afford.
5. The Right Against Invidious Discrimination Is Statutory, and Therefore Subject to Constitutional Review, if Statutes Are Written or Applied in a Manner Which Conflict Irreconcilably with Precedent Constitutional Rights. There is no Constitutional right to be served or employed by a private business, or to prevent such a private business from making its decision to deny service or employment on grounds which constitute invidious discrimination against a member of a protected class, by virtue of antipathy towards a member of that class because of his or her race, gender, religion, or other statutorily protected characteristic, which, in recent years, increasingly include sexual orientation and sexual behavior. To the degree that you have the ability to seek legal redress for such discrimination, that ability is based on anti-discrimination statutes, which prohibit private businesses from denying service to individuals based on antipathy towards members of their protected class, or making employment decisions on the basis of such antipathy.
If such statutes are written or interpreted or enforced in a manner which infringes on religious rights, then such statutes are potentially invalid. The reverse is not, however, true: to the extent that the Constitutional right of freedom of religion infringes on anti-discrimination principles, the Constitutional right is not potentially invalid. To the extent, if any, that there is any irreconcilable conflict between the Constitutional right to freedom of exercise of one's religion and any statutory protection against private invidious discrimination, the Constitutional right potentially trumps the statutory protection, not the other way around. Based thereon, when certain religious exemptions are codified into anti-discrimination laws or other statutes, this is not necessarily a per se invalid or unfair legislative preference, but a reasonable attempt to ensure that legislation is constitutional, which good legislators should always strive for (upholding the Constitution being the heart of their oath of office). This does not mean that anti-discrimination laws against individuals with same-sex sexual orientation are necessarily unconsititutional, but it does mean that such statutes must pass constitutional muster.
Contrary to the long standing religious rights which are precedent, inalienable, and affirmed in the constitutional text, many of the more recently claimed rights and privileges which are now taking center stage in the American consciousness, which have been called by some the "erotic rights" (such as the recently discovered constitutional rights or recently enacted statutory rights to have an abortion on demand and without regard to reason, to terminate an inconvenient pregnancy; the right to access to contraception, including for unmarried adults and not-yet-adults; the right to unilaterally divorce one's spouse against that spouse's will even where no betrayal by the spouse justifies the divorce via no-fault divorce laws; the right to engage in sexual acts which were previously illegal; and the right to require that one's relationship be defined as a marriage even if it does not include both a male husband and female wife, such that the State must now pretend that there are no sex distinctions among parents on birth certificates or spouses on marriage licenses) are of relatively recent vintage, and are not referenced in the text of the Constitution. Certain of these rights or legal protections have become largely uncontroversial, but all of them were enacted in their time with little to no evidence as to the long term effects, for good or ill, of their recognition. As the decades go by, easier assessments may now be made on that question, and the evidence to date suggests the sexual revolution which gave birth to these new erotic rights is not making society a better place, especially for women and children.
6. Constitutional Rights Are Not Absolute. None of the foregoing is intended to suggest that religious freedom may always be invoked, or should always be invokable, as an absolute trump card and prohibition in every case where a statute is claimed to violate any particular individuals or group's right to conscience. The First Amendment protection of freedom of speech does not prohibit the government from punishing you for yelling fire in a crowded theater. A member of a religion which taught its members that they must kill non-adherents would not be able to avoid charges of murder for fulfilling any such commandment, on the grounds that the murder statute violates his rights to the free exercise of religion. The U.S. Supreme Court recognizes that certain governmental interests are sufficiently compelling to allow statutes enacted in furtherance of those ends to be enforced even against Constitutional objections, where the statutes in question meet certain tests, such as with respect to a statute which was not motivated by an intent to violate Constitutional rights, but to further other sufficiently compelling interests, and which was written and applied in neutral fashion and in a manner designed to avoid overly restrictive means to further those interests.
Thus, gay rights advocates have every right to argue that certain statutory schemes pass constitutional muster, despite any alleged encroachments on religious freedom, if those statutes meet particular legal or logical tests. Such arguments must, however, be rational and reasonable and legally compelling, if they are to be taken serously. Manichean arguments which presume that any proposed legislation sought by one side or the other must always be taken as representing light and truth and any objections from the opposite aisle must always be presumed to be based in darkness and bigotry, should be treated with contempt, so as to force both sides to formulate and present better reasoning which will hopefully result in superior legislation. For example, Dallin H. Oaks was asked about a New York Times editorial claiming that the Church was seeking legal permission to discriminate against gays. His response, as quoted by Tad Walch in the Deseret News of January 30, 2015, was a perfect example of insisting on fair and rational dialogue and argument: "When I heard that I can tell you my reaction," Elder Oaks said. "I thought, well that illustrates how much we need to have people educated about the principles we are teaching of fairness and balance, because that's a very unbalanced statement. I would be ashamed to make a comparable statement saying that nondiscrimination is just trying to wipe out religious freedom . . . . That would be the equivalent. I'd be ashamed to make that kind of a statement, and I'm sorry that a responsible voice in the New York Times made it. I'm hopeful that he'll see that's not our motivation and that's not the intended effect of what we're doing."
7. Invidious Discrimination in Secular Life against Individuals Because of their Sexual Orientation Is Morally Wrong. I have represented gay clients including in matters involving their relationships with their partners, and I would consider it immoral to decline such representation on the basis of a potential client's actual or perceived sexual orientation. Likewise, I would consider it immoral for any business which offers general services, not tied in any way to endorsing any particular viewpoint, to discriminate against potential customers on the basis of their sexual orientation.
8. Declining to Participate in Certain Events or to Promote Certain Points of View Is Not Morally Wrong, Nor Is it Necessarily Invidious Discrimination. As a lawyer, I have and I will continue to represent some clients who are gay, and will be happy to provide them with the best representation possible in civil and business transactions and disputes. I would even be happy to draft a prenup for a same-sex couple, and I have in the past assisted in legal disputes upon the termination of such a relationship. However, I would not accept a case to represent a gay client who wanted me to argue against a traditional marriage statute. This would not be a form of discrimination against such a client. I would not be declining the case because of the potential client's sexual orientation, but because of the position he wanted me to assert, with which I fundamentally disagree. I am not required to accept a case which would require me to argue for changes in the law with which I personally fundamentally disagree. Similarly, no one would claim that a gay lawyer who declined to represent a religious group seeking to file a brief in support of maintaining the traditional definition of marriage was guilty of invidious discrimination against a potential client because of that client's religion, especially if the lawyer indicated that he would have been happy to represent the same group, or any of its members, with respect to other issues, such as a private business disputes, having no political implications. This seems a fairly easy test, but it is one which government and courts are increasingly failing, as they seek to impose ideological conformity against any who dare to dissent from the new political orthodoxies of our age.
For example, in one recent case, the New Mexico Human Rights Commission, a public body founded upon the Orwellian principle that the biggest threats to our human rights are to be found in our fellow citizens, not in our government, disproved that founding principle of its absurd existence, by fining a private citizen for declining, on religous grounds, to photograph a same sex committment ceremony. Although the photographer testified that she would have offered other photographic services to the individuals involved, such that she was not discriminating on the basis of the potential clients' sexual orientation, the commission ruled that she had violated New Mexico anti-discrimination statutes. This was the wrong ruling. In the name of consistency and equal application of the laws, would the commission have issued a similarly inappropriate ruling against a gay-owned web-design and hosting business which declined to provide its services to a group wishing to establish and maintain a web site promoting traditional marriage, on the grounds that its denial of services to such a group was based on invidious discrimination against the members of a particular religion? Or in that case, would they have suddenly become able to parse the difference between declining a service on grounds of viewpoint difference, rather than on grounds of invidious discrimination? If you believe the commission would have reached the same result in both cases, please contact me to help you set up a guardianship, as you are clearly not sufficiently intelligent to handle your own financial affairs. For the rest of us, who are sane enough to understand that the ruling against the photographer was based on exercising raw political power in order to bully, censor, and intimidate people of faith, and was not based on any sound principle of neutral and universal application, it is worth contemplating the various ways in which the ruling violated virtually every principle of religious freedom and freedom of conscience which the English speaking people have understood since John Locke explained to us over 300 years ago that "penalties are impertinent" if used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences."
9. Declining to Perform Acts Which One Believes to Be Immoral Is Protected Conduct. An even greater threat to religious liberty than being forced to endorse viewpoints with which one disagrees, is the potential threat of being required to perform acts which one believes to be morally wrong. Should a Catholic doctor be required to prescribe an abortifacient? Should an Evangelical pharmacist be required to fill it? Should a photographer be required to photograph a same-sex commitment ceremony if she is personally opposed to same-sex marriage? Should a doctor be required to provide in vitro sperm donation services to a lesbian couple, if he believes children have a moral right to a mother and a father? Should an adoption lawyer or agency be similarly compelled? According to long-standing case law, and even longer standing principles of religious freedom in the west, the answer to all of these questions is clearly no. Nevertheless, the wrong answer has been reached, again and again, in recent years. Notwithstanding long-standing principles of religious freedom, citizens in America HAVE BEEN FORCED to pay an impertinent penalty, to confess by word or act their faith in new orthodoxies, to have their moral agency coerced, to quit the light of their own reason and oppose the dictates of their own consciences, and have been discriminated against because they hold religious views abhorrent to the authorities (as happened to the students of Gordon College, a religious institution with prohibitions against homosexual conduct, whose students were recently prevented from applying for student teaching internships in a public school district). How has this happened? We have sold our birthright of religious freedom for a mess of erotic-rights pottage. We have decided that religious freedom, though explicitly guarantied in our Constitution, is less important than the judicially created right (no-where explicitly set forth in the Constitution) not only to participate in certain sexual acts, but to force the entirety of society to affirm and celebrate you for doing so. Religious movements and religious adherents brought us abolition and the civil rights movement. The sexual revolution brought us an illegitimacy rate of 50% (vs. 6% in 1960), broken homes, fatherless children, the feminization of poverty, sex selective abortions which overwhelmingly target unborn female children, and a youth suicide rate which is three times higher today than it was in 1950. But no matter: the erotic rights which were pioneered during the sexual revolution are now far more important (despite their overwhelmingly adverse consequences) than the religious rights which are explicitly stated in the Constitution.
10. The Constitution Did not Create, but Merely Affirmed, the Right of Freedom of Religion. It is important to understand that religious freedom, together with the other freedoms listed in the Bill of Rights, were not created therein, but, rather, were affirmed thereby. Our founding fathers understood this distinction. The Constitution and the Bill of Rights listed and recognized pre-existing rights, granted by God, not by government (demonstrating another essential reason for religous liberty and for religous involvement in a healthy civil society: as giving the citizenry a source beyond government for its rights and liberties). The rights listed in the Constitution were argued to be essential reasons for the revolution long before the Constitution was enacted. As explained by Bernard Bailyn, in The Ideological Origins of the American Revolution, at pp 187-189, the great thinkers of the revolutionary tradition argued, many years before the constitution was enacted, that the rights being pursued in the revolutionary struggle were the inherent and intrinsic God-given rights which existed independent of any written legal documentation. John Dickinson pointed out in the mid 1760s that charters are "declarations but not gifts of liberties" as kings and parliaments cannot give "the rights essential to happiness." Rather: "We claim them from a higher source -- from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice." Id. Thus, written statements of rights "must be considered as only declaratory of our rights, and in affirmance of them." Bernard Bailyn, The Ideological Origins of the American Revolution. pp 187-89. Similarly, Alexander Hamilton declared that "the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power." Id. Philip Livingston queried whether he had truly understood an argument to the contrary, raised by the Reverend Thomas Chandler, correctly; had that man really meant to say "that any right . . . if it be not confirmed by some statute law is not a legal right"? If so, Livingston stated: "in the name of America, I deny it." Rather: Legal rights are "those rights which we are entitled to by the eternal laws of right reason" existing independent of positive law, and standing as the measure of its legitimacy. Bailyn, id. Thus, the rights to religious liberty listed in the First Amendment were not created thereby, but were understood by the revolutionary generation, long before the Constitution was even proposed, let alone enacted, as natural and God-given (not Government-given) and inalienable, as (we might say today), pre-Constitutional rights, which is what they were fighting for. Freedom of religion was one of those rights, and it was not invented by the founders or created by the First Amendment, but rather, understood by the founders and affirmed by the Constitution. It cannot, therefore, be taken away, no matter what the historically illiterate advocates for 2014's ghastly proposal known as the "Udall Amendment" (criticized by even the ACLU, which, once in a while, remembers its claimed purpose) had to say about it.
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