Elder Oaks' speech to Brigham Young University Idaho, this last Tuesday, has raised a firestorm of critique and support. But there are some arguments that need parsing, despite all the brouhaha, if we wish to understand Elder Oaks, and perhaps the Quorum of the Twelve and the First Presidency of the Church of Jesus Christ of Latter-day Saints as they take political action.
Elder Oaks is very careful. He writes in ways that make his points and yet avoid some buried mines, even if some exploded around his words in this case in ways that obscure his logic and broader meaning.
As a result reading him with care is required. In this post we shall read his speech entitled “Religious Freedom” for the meaning found in some of his very cautious wording.
While most conservatives on the issue of Gay marriage would write that a marriage between a man and a woman has been the norm for thousands of years, Elder Oaks writes “The marriage union of a man and a woman has been the teaching of the Judeo-Christian scriptures and the core legal definition and practice of marriage in Western culture for thousands of years.”
His observation sounds the same to many, but his restrictions are important. He limits the observation to “Western culture”, to “core legal definition and practice”, and to “Judeo-Christian scripture”.
By limiting the argument in this way he hopes to avoid the explosive mine of all the scholarship that shows that marriage between a man and a woman is not and has not been the only human way of building family and of coupling. Nevertheless, he does not avoid debates about how scripture should be read and understood on the issue or debates about the nature of law and practice from the ancient to the modern world in relationship with families, gender, and sexuality.
Though this latter might be seen as an Achilles heel of sorts, Oaks appears to rely here on an unwritten norm of authority held by religious leaders to articulate what the proper reading of scripture should be and that of legal officials to articulate the law. But that is troubled by the next very careful distinction he makes.
Elder Oaks states “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.” He is discussing the first amendment to the US Constitution which he affirms is divinely inspired and which is a model for the rest of the world in its support of religious freedom and its support of “popular sovereignty”, “the principle that the people are the source of government power”.
As if recognizing that the notion of popular sovereignty can undercut not just government officials but also other leaders who claim authority, such as religious leaders, Oaks opens a potential limit on popular sovereignty when he writes in the very next paragraph “Along with many other religious people, we affirm that God is the ultimate source of power and that, under Him, it is the people’s inherent right to decide their form of government.”
He has now named the classic set of oppositions that articulate Western structures of authority: Rulers, People, and God. One can hold any of the three as the root of sovereignty, and thinkers do, or one can argue for some sort of balance and relatedness among them. Here, Elder Oaks finds himself in paradox.
His exegesis depends on the right of religious leaders to state what they feel God has said; yet his notions of government depend on the people. God may be the root, but that root is only there for some of the people, the religious ones. As a result, God is in a delimited place. He has no direct sovereignty here and cannot speak openly and directly, other than through leaders or people.
This latter is important. If God is behind the movement of popular sovereignty, such as in the US Constitution, then he can be argued to be present in the acts of history due to the movement of people which overturn established norms and values, even if religious authorities disagree with them.
Curiously, despite his rigor, Elder Oaks has apparently undercut the authority of religious leaders. Yet he seems to wish to sustain that precise authority. How he does so is an example of how constricted a space of argument he finds himself in.
He does not argue for religious authority directly. Instead he builds his case from the “right” (he says right, he does not say freedom) “to choose religious beliefs”, what is often called the freedom of conscience. Elder Oaks cast doubt on the idea that people could, under this guarantee, choose unbelief. Instead of focusing here on people’s choice he shifts to the strong actions of non-believers to take away religious freedom. “Atheism has always been hostile to religion, such as in its arguments that freedom of or for religion should include freedom fromreligion. Atheism’s threat rises as its proponents grow in numbers and aggressiveness.”
Elder Oakes seems to claim a limit in the protection of choice here to religious beliefs, and not allow that choice for non-religious belief. This is because:
“[U]nless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution”
Elder Oakes here seems to be arguing that religion is so important to the body public that it must be protected and that protection means some kind of special rights not grated to beliefs not deemed as religious.
Yet the bulk of Elder Oaks’ talk is about what he feels is an increasing hostility to religion in the public sphere and to attempts to limit religious action, despite the evident importance granted it by the framers of the Constitution when they made religion the subject of the first amendment.
Suddenly we are forced back to the issue of religious authorities that we left hanging earlier.Elder Oaks carefully defines the right of religion as one of belief and affiliation. Ostensibly, these two, belief and affiliation depend on people to take action, i.e. to actively believe and to actively belong. What they believe he has circumscribed, by identifying it and limiting it to religion, however what they affiliate with and the nature of that affiliation is a problem.
Elder Oaks seems to wish for some notion of dual sovereignty, whereby religious organizations can be argued to depend on the right of people to affiliate with them for their legal existence, while their authority depends on God being behind them, although he never quite says this. But without a statement like this, his talk leaves a big hole in the movement from a right of affiliation to the authority of religious leaders. As a result, it is the place of religious authorit(y/ies) that Elder Oaks feels threatened.
I would argue that part of the threat comes from the very logical structure of ideas that Elder Oaks lays forth. I paraphrase his argument as follows religious authorities only have authority if people listen to them, and in the current state of affairs, people are less and less willing to accept that authority in the public arena, and they use religious affiliation to discredit public candidates for office. This is dangerous and runs against the freedom of religion in the constitution, which can be turned to argue freedom to protect religion and grant it a special place, against the popular sovereignty of the people who have chosen to not believe. We feel threatened and need this special rights to protect ourselves and the rights of people who follow us.