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.