A Response To Elder Dallin H. Oaks' Comments Made At Brigham Young University-Idaho On Religious Freedom

Overall, the talk was spot on. Where it falls apart is when it deals with California's Prop. 8 which was passed in California's Nov. 2008 election. Please consider our remarks on his italicized comments -

"A second threat to religious freedom is from those who perceive it to be in conflict with the newly alleged 'civil right' of same-gender couples to enjoy the privileges of marriage."

There is no conflict. No one is calling for churches to be forced to accept gays nor force their clergy to perform marriage ceremonies for same-sex couples. One issue is about the boundaries of legally acceptable behavior of churches being involved in politics. The First Amendment clearly allows churches to believe and teach whatever they want. The First Amendment also clearly allows anyone, including clergy, to express and publish those views. Those are not the issue nor are those freedoms in any in jeopardy. The real issue is whether churches should be allowed to openly direct their members to donate to and campaign for various politicians and propositions (and in this case whether the Church leaders can set up an organized fund raising and campaign apparatus, provide leadership, training, etc.. in order to solicit campaign contributions and campaign workers from its member for propositions such as California's Prop. 8 and still retain their "non-profit" status). Considering that LDS make up only 2% of the population of California, yet they provided nearly half of the funding and 90% of the workers, the corporate Church's expertise in raising money and campaign volunteers is astonishing.

The tax laws address the level of political involvement non-profit organizations are allowed. Whether the Church violated this by having the membership donate (with individual members filling out donation slips stating to which congregation they belong and the amount of their donation, the Church knows who donated what.) directly rather than the corporate Church donating the same amount itself. If it would have done the latter, it definately would have violated the law. Whether this is a violation of the law or a convenient legal loophole is up to the courts. These things upset some same-sex marriage advocates. They consider the donated money and campaign volunteers as coming from the corporate Church and therefore in violation of campaign finance laws.

Since California's Prop. 8 eliminated an existing right of gays to marry, Prop. 8 proponents were seen as homophobic hatemongers destroying their equal rights under the California state constitution. We believe that this, rather than the money and volunteers issues, was the real reason for the backlash against the Church.

Whether marriage is a God-given right and therefore covered by the Fourteenth Amendment of the US Constitution is up for the courts to decide. We believe it is both. Recently, a Federal Court Judge agreed to hear a lawsuit seeking to overturn Prop. 8 saying that it violated the Fourteenth Amendment's protections of Due Process and Equal Protection. Read about it here. This issue is also addressed in this essay and in another one here. The Iowa State Supreme Court likewise agreed. Please review the detailed and/ or abbreviated summaries here. You will see that the Court's logic and methodology to be beyond solid. Any other court addressing the issue will have a hard time coming to a different conclusion if they objectively look at the evidence and logic employed.

"The real issue in the Proposition 8 debate....is whether the opponents of Proposition 8 should be allowed to change the vital institution of marriage itself."

That same question could have been asked of us. Many non-LDS Christians also could have asked us whether Mormons should be allowed to change the definition of what a Christian is. For the past 1500 years, a Christian was someone who believed in the Athanasian Trinity, baptized infants, etc... Do we LDS have a right to redefine and broaden the term "Christian" so that we LDS can apply it to ourselves? Isn't that what same-sex couples want to do so that they can have equal civil rights and secular social status? Read more on this in our essay found here.

We, however, believe that the "real issue" is whether Prop. 8 violates the Fourteenth Amendment's protections of Due Process and Equal Protection.

Such terms as "sacred", "holy", "sanctity", etc.. are regularly used by supporters of traditional marriage to describe it in order to persuade others to ban same-sex marriage. The problem though is that these terms are religious in nature. Our government is secular, as required by the Constitution. The government does not hold anything "sacred", except perhaps the Constitution itself. Legal arguments to keep marriage "sacred", "holy", "sanctity", etc..are of no legal consequence due to the First Amendment's requirement of separating Church and State.

We LDS, according to the vast majority of people, violated the "sacred", "holy", "sanctity", etc..aspect of marriage when we adopted the ancient practice of polygamy. To paraphrase Elder Oaks, "should [we LDS] be allowed to change the vital institution of marriage itself?" We tried, according to our enemies, to desecrate the "sacred", "holy", "sanctity" aspects of marriage through polygamy, but were prevented by those, who through the legal process, let their own "religious opinions prompt them to infringe upon the rights and liberties of others". ( D&C 134:4). See also D&C 134:9 and 1 Cor. 10:29.

Was polygamy a desecration of the sacred and holy "sanctity of marriage"? Should those claiming that it was a desecration have been able through the legal process, to ban it? How is this different from what we did via Prop. 8? LDS proponents of Prop. 8 may claim that banning polygamy was a violation of our First Amendment rights since our religion mandated it. What if a "same-sex friendly" church likewise required its members to "have no sexual relations, except with their husbands or wives to whom they are legally and lawfully wedded" ? Wouldn't banning Civil Same-Sex Marriage likewise be an infringement on the First Amendment rights of same-sex couples? What is the objective difference? It is a clear violation of D&C 134:9 which condemns the use religious influence upon government to deny others their equal civil rights.

Since the only aspect of marriage addressed by our secular government deals with the Civil/Secular rights of marriage, we can use the legal process to change or modify those Civil/Secular marriage rights. This is what Prop. 8 did. This is legal as long as the Constitutional Rights of all are held harmless. Whether those rights were held harmless is what the case in Federal Court seeks to determine.

"We have endured a wave of media-reported charges that the Mormons are trying to 'deny' people or 'strip' people of their 'rights'. After a significant majority of California voters (seven million - over 52 percent) approved Proposition 8's limiting marriage to a man and a woman, some opponents characterized the vote as denying people their civil rights. In fact, the Proposition 8 battle was not about civil rights, but about what equal rights demand and what religious rights protect."

As pointed out above, same-sex couples DID indeed have the right to marry under California's state constitution. Prop. 8 was about stripping that existing right away. This is objectively "denying people their civil rights".

Regarding "what equal rights demand", those who defended miscegenation laws used the logic that since such laws affected both Whites and Blacks equally (Black men couldn't marry White women nor could White men marry Black women), the Fourteenth Amendment's "Equal Protection" clause was not violated. Same-sex marriage bans use the same logic..since men can't marry men and women can't marry women, so the Fourteenth Amendment's "Equal Protection" clause was likewise not violated since it applies to both genders equally.

We know that Prop. 8 does violate the Fourteenth Amendment as clearly shown in the Iowa State Supreme Court's decision on same-sex marriage. That Court decision obviously has no jurisdiction in California nor any other state, but its logic must be addressed by any subsequent legal challenges. Prop. 8 WAS about civil rights since its effect was to strip same-sex couples of their civil right under California's state constitution to marry. We also know that proponents of Prop. 8 have yet to offer ANY objective/secular reason or evidence compelling enough to meet the required legal demands of "Heightened Scrutiny". Meeting these legal demands is necessary to legally justify abridging the equal rights of gays and lesbians as was shown in the Iowa State Supreme Court's decision.

As far as "what religious rights protect", we know that no religious rights that were threatened. The only thing that could possibly be threatened is the Church's non-profit status in California. There is no First Amendment right to have the tax code consider churches as non-profit entities when they violate the laws of the land regarding what a non-profit group can or can't do. One of the defining aspects of the LDS concept of "Agency" is that we are free to choose our actions but not free to choose their consequences. If we broke Caesar's tax laws, we must take responsibility and accept the known consequences. We must render unto Caesar that which is his.

We also know that, "Religious freedom does not imply nor provide license to infringe or impose upon the rights and liberties of others."
(L. G. Otten and C. M. Caldwell, Sacred Truths of the Doctrine and Covenants [Salt Lake City: Deseret Book Co., 1982-1983], 2: 375.)
Notice that the adjective "religious" was not used when refering to the rights and liberties of others, thereby indicating that ALL rights and ALL liberties are to be protected. We do NOT have the right to impose our subjective moral standards on others in violation of their civil rights granted to them under Caesar's law. D&C 134:9 likewise condemns the use religious influence upon government to deny others their equal civil rights. We LDS want to use our influence to "judge the liberties" of others.

This is confirmed in 1 Cor. 10:29 wherein Paul denies that others have the right, based simply on their subjective religious beliefs, to limit his freedoms. Others can't limit our freedom nor can we limit theirs. Our actions regarding Prop. 8 are in open opposition to scripture, the highest official source of truth for the Church. The Family: A Proclamation to the World's final paragraph calls for denying gays their equal civil rights.

"While our church rarely speaks on public issues, it does so by exception on what the First Presidency defines as significant moral issues, which could surely include laws affecting the fundamental legal/cultural/moral environment of our communities and nations....we must insist on our freedom to preach the doctrines of our faith."

Again, no one is even talking about denying "our freedom to preach the doctrines of our faith." If all we did was publically state our beliefs, as was done when we issued The Family: A Proclamation to the World, there would be no problem nor would we have faced a backlash. We didn't do this regarding Prop. 8. We went beyond simply using kindness gentleness, meekness and love unfeigned to encourage obedience to the commandments and resorted instead to using the force of law. We LDS simply let our "religious opinions prompt [us] to infringe upon the rights and liberties of others." Same-sex couples HAD a right to marry in California prior to Prop. 8. We objectively infringed upon that right and in doing so violated the principles taught in D&C 134:4 , D&C 134:9 and 1 Cor. 10:29.

Our actions were objectively contrary to the scriptures, contrary to our teachings regarding force, contrary to the Constitution, contrary to agency and were a betrayal of our own history and legal and logical positions regarding our own unique form of marriage that the majority opposed (polygamy)....and why did we do such shameful acts? Because we wanted the "40 pieces of silver" gained in the form of perhaps protecting our religious freedom from possibly being harmed some day by those who are in no way seeking to harm it and have denounced such tactics. We sold our souls and steadied the ark, also contrary to the scriptures, in the process.

For Shame.