It seems to me that this setback is an important part of what LDS Apostle, Dallin H. Oaks’ spoke of as a war over religious liberty in his speech at Brigham University Idaho. As a result, I want to look at the issues to comprehend Elder Oaks’ position.
However, I am an anthropologist and not an attorney. My interest, therefore, is not the legal one of weighing the arguments in terms of precedents and possible courses of future argument, rather it is about understanding the social reality and operations of religions, particularly the LDS Church, and the ways law as social institution constrains and enables religious action.
One way of comprehending Elder Oaks’ concerns is to see him discussing what he feels is a noticeably constrained field of religious action, specifically in the United States, but perhaps around the world as well. He mentions efforts to “silence” the voice of religions in the public sphere as well as conflicts between religious rights and civil rights.
On the first issue first. The bulk of sociological argument over the last century held that the exclusion of religion from the public sphere was a sign of modernity. The surprise more recently was that religion did not stay in that constrained space.
In the United States the Moral Majority of the eighties and the strength of the religious right as an electoral and public force up until the last presidential election, as well as the power of religion as a political and publicly aggregating force in other countries, led sociologists, such as Robert Bellah, to proclaim that they had been wrong. They said we are living through a time of renewed religious activity in the public sphere. Even Jürgen Habermas, the great philosopher of reason and the public sphere welcomed religion to civic society.
It is in terms of these arguments that Oaks’ comments must be situated for anthropological analysis. Or, to paraphrase Benjamin, they “arise at a time of danger,” which in Oaks’ position might be a time of increasing constraint on the public voice LDS leaders and others had won a generation and a half ago, in a massive turn to the public sphere.
In the LDS case this turn would include, of course, LDS mobilization and action agains the Equal Rights Amendment (documented in historian Martha Bradley’s book Pedestals and Podiums: Utah Women,Religious Authority,and Equal Rights) and its actions in behalf of various Defense of Marriage acts (documented by anthropologist Richley Crapo). But it must also include the massive movements of Latter-day Saints as a group to the right, the development of powerful LDS legislators in Washington and in the states, the growth of an influential group of LDS jurists well trained in constitutional struggles, such as the late Rex E. Lee.
As a result I would include the 1993 Religious Freedom Restoration Act. According to the Deseret News, LDS Senator for Utah, Orrin Hatch wrote the Act as a sign of Mormon influence and power and as a key moment in an opening of the space of religious action in American society
These social struggles spawned hordes of political action groups and non-governmental organizations. We can legitimately speak of a social movement or movements here. However, when social scientists look at social movements, they normally look at them as spawned by the movement of individuals.
Here we have that- - certainly the LDS gay rights movement that arises with its multitude of organizations, and aspects of the LDS Feminist movement (see Charles Perry’s thesis at the U of U, “Let he who is without sin cast the first orange: Anita Bryant and the making of the gay rights movement in Salt Lake City”)-- though the feminists have suffered greatly due to social change and direct action against them by the brethren.
But we also have elite actions and elite movements. In the case of Latter-day Saints these connect deeply with ideas of how the Church is organized. They also build on a metaphysics of the Church as a body greater than individuals and norms of personhood and inner-life which favor that transcendent whole. In other words, the particular ways in which believers are mobilized by elite actions need to also be taken into account, particularly in this case, given the specific ways in which Mormonism as a religion is constructed.
However, those analyses are not my point right now and so I will return to the Religious Freedom Restoration Act. In it we see Elder Oaks' two issues come together. Given both its brevity and its importance for the current discussion, it is worth quoting this act in some length, although I shall reformat it.
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; (2) laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification; (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests. [...]
Purposes: The purposes of this Act are--(1) to restore the compelling interest test [...] and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. [...]
Free Exercise of Religion Protected. (a) In General: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
These are precisely the concerns raised by Elder Oaks in his speech to the students at BYU Idaho, although here they are raised in greater technical language. Oaks is worried that government is valuing the civil rights of citizens, in its concern for equal protection, over the rights and importance of religion, given its protection in the US Constitution.
As a result, let us look at the arguments the Church made, through its attorneys, in its Amicus Brief.
In this brief, the church joined with a list of religious-right bodies, though only those which were religions and not those of a more specifically political character. These included : The California Catholic Conference, the National Association of Evangelicals, and the Union of Orthodox Jewish Congregations of America. The brief was presented by a leading right wing attorney and celebrity, former special prosecutor Kenneth Star, and Alexander Dusku from the Church’s firm of Kirton and McConkie. As a result, of Dusku’s prominent place, there can be little doubt the brief represents approved opinion from within the Church’s hierarchy which probably includes Dallin Oaks as an attorney and former member of Utah’s Supreme Court.
The brief argues that “Marriage is society’s most important institution and not merely a vehicle for advancing the interests of adults,” which is what they claim their opponents attempt to accomplish by making marriage a private institution between any two adults. Accepting that change will fundamentally alter the nature of marriage and, therefore, have a negative effect on society, it holds. It claims, as a result that the state has a compelling interest in maintaining the “traditional” regulation of marriage.
Along the way, it argues, not surprisingly that the courts are the wrong place in which to determine issues, such as marriage, that have a broad social impact. The proper place, they feel, would be in the legislature, or in the direct hands of the democracy.
However, the brief makes a specific argument along the way that is very interesting about the place of religion in society and under the law. It claims that one of the ways marriage would be damaged by accepting same sex unions would be in diminishing its status (p. 43) It has this status in part because of a broad social consensus around marriage that depends on religion and its place in society.
Marriage is nourished and supported by a deeply ingrained social consensus that creates a web of meanings, practices and expectations. The push for same-sex marriage threatens that consensus. [...] The existing social consensus reflects, in part, a powerful agreement among virtually all faith communities on the meaning and importance of marriage. More than all other institutions, faith communities foster and nourish the marriage ethic as the ideal institution for family life. Marriage is often associated with powerful religious symbolism and traditions that anchor a couple’s commitment to the institution. Faith communities are an essential pillar in the social infrastructure that sustains the uniquely elevated status of marriage. They give marriage spiritual meaning that fortifies the social consensus that marriage is the best venue for bearing and raising children. Notably, while marriages can be celebrated by various secular functionaries, the overwhelming majority of people choose to be married by a religious official. [...] Even for many people who are not religious, the religious imprimatur on marriage is highly valued culturally. In effect, the State and religious institutions informally cooperate in maintaining and fostering a social institution vital to vouchsafing both secular and religious interests. [...] The creation of a genderless definition would fracture the centuries-old consensus about the meaning of marriage, spawning deep tensions between civil and religious understandings of that institution. What is now a point of social unity would inexorably become a point of social conflict, to the great detriment of marriage. [p. 43-44]
Here is the key, I believe, to what Elder Oaks sees as the battle over religious freedom. Arguably, he feels that religion deserves a special place in US society, as in the consensus they argue would be broken if gay marriage were allowed. Without this entanglement, what Jakobsen and Pellegrini (Love the Sin: Sexual Regulation and the Limits of Religious Tolerance) note is a kind of establishment of religion in US society.
Oaks fears that the resulting social conflict, from removing this establishment, would marginalize religion and take away one its strongest bases of legitimacy and support. He fears the neutral application of a law on marriage that only takes account of individual adults private interest in an equitable way will be to the detriment of religion.
And, he may be right, whatever ones politics are about marriage. One of the strong arguments about why the US is different from Europe points precisely to the separation of Church and State, while at the same time religion is deeply supported and entangled in governmental and societal functions. Religion maintains relevance and social purpose, as a result, which it probably would not be able to maintain if it were simply a matter of individual conscience and personal, private belief.
As an aside this is a different argument than that made by the market theorists who feel that it is the strong, competitive religious market that keeps religion alive. But they make a mistake in economics by not taking into account the role of the institutions that prop up the regime of values that forms a market. If Oaks is right, we may be on the verge of seeing an experiment in social theory, not to forget an important shift in the ways religion, and in particular the LDS Church, relates to society.
The Court only mentioned the brief in a footnote and contrasted it with the arguments of religions in favor of gay marriage. These latter argued their religious freedom was violated by the entanglement of the state in a theologically driven notion of marriage which compromised the state in debates that really pertained to the [private] space of religion. It was not the state’s role, they felt, to resolve religious debates.
In its discussion, the state did not discuss the issue of religion at length. It simply found in favor of Gay marriage and equal protection. The argument the LDS Church and friends raised was decimated as a result. And, the reality of the way judicial decisons impact social process may change the social basis for religion in American society. Even though the Church won the Proposition 8 battle, this decision was fundamentally upheld in the subsequent case before the court about the constitutionality of Proposition 8. It was a pyrrhic victory. At its end, the LDS Church finds itself in a much weaker place than before this battle, to its consternation and Elder Oaks’ public complaint.