Defend Divinely Inspired Freedoms

I am grateful for the close association we have with Catholic, Evangelical, and Jewish leaders in the United States and the friendship that allows us to work on common issues of mutual concern, even though our ecclesiastical doctrine is different in many important respects.

My purpose today is to review the progression of basic principles that have established religious liberty as part of essential or inalienable rights — the fundamental right of each individual to live according to his or her faith and beliefs. And as a corollary, to protect the religious institutions that provide the essential framework for the promulgation of faith and belief. In addition, my challenge is that people of faith, whose values are consistent with Judeo/Christian values, work together to improve the moral fabric of our nation and protect religious freedom.

Our legal heritage in the United States echoes back to Magna Carta as early as 1215. Magna Carta served as an important precursor to the broad protections of religious freedom that came to fruition centuries later in liberal democracies descending from the British Empire. ¹ It helped establish as early as 1215 that deference should be afforded to churches in the governance of their internal religious affairs.

In addition to Magna Carta, we are the beneficiaries of the concepts and principles established by English Common Law. In approximately 1600 Sir Edward Coke, produced the consolidation of the English law in written form. His work was to law what Shakespeare's was to literature.

Coke seized upon Magna Carta"... as the embodiment of good laws." In his famous words Coke said, Magna Carta was, "such a fellow that he will have no sovereign."²

In the American colonies Magna Carta was drawn on heavily in both the Declaration of Independence and the First Amendment to the American Constitution.

That Declaration contains the seminal words " … all men are created equal,... they are endowed by their Creator with certain unalienable Rights..."³ The acknowledgement of God, the Creator of the Universe, as the ultimate giver of essential rights is proclaimed in a magnificent fashion and clearly reflects the cherished beliefs of most people.

Natural law or even a belief that we are accountable to God is not in fashion in much of the legal world today. But the recognition that individual rights are part of the design of a loving Creator is part of both Catholic and Latter-day Saint theology and other faiths that are represented here today. It is not government which has the disposition and power to grant these protections and rights-they are derived from our Creator. The preamble to Magna Carta acknowledges the grace of God and the document places the king not only below God, but also below the law.⁴

I am encouraged by the memorandum, from the Office of the Attorney General, issued earlier this month, October 6, 2017. Under the heading, Principles of Religious Liberty it declared that, "Religious liberty...is enshrined in our Constitution."⁵ It quoted James Madison's famous words that the free exercise of religion, "is in its nature an unalienable right" because the duty owed to one's Creator, "is precedent, both in order of time and in degree of obligation, to the claims of Civil Society."⁶ The entire memorandum is a remarkable document and is supportive of many of the concerns that each of us has.

Nevertheless, people of faith must be at the forefront in protecting religious freedom—a freedom from which many other essential freedoms emanate. Freedom of religion and freedom of speech are both the heart and the foundation of representative democracy. Freedom to believe in private and to exercise belief and speech in the public square are essential to protecting inalienable rights.

In the American colonies, the practice of religious beliefs was a principal reason for the original settlements in New England, Pennsylvania, and Maryland (a Catholic settlement). As one scholar has noted, "More material was printed in mid-18th century America about religion than about political science, history, and law combined … "⁷

Interestingly, the term "free exercise of religion" first appeared in a 1648 legal document in America when a new Protestant governor and counselors in Maryland promised not to disturb other Christians, with particular emphasis on Roman Catholics, in the free exercise of their religion. This represented the first attempt in the Colonies to ensure that Protestants and Catholics could live together under circumstances of equality.⁸

This early example of religious pluralism has continued in the United States, where on the whole, a multiplicity of religions have been secure in their religious rights. The country has greatly benefited from religious pluralism.

We acknowledge that religious freedom has not always been protected. Both Catholics and members of The Church of Jesus Christ of Latter­ day Saints were persecuted in early American history even after the founding of the new nation. We also acknowledge the persecution of Jews which is without analog in history. In an International Church­ State Symposium in 1998, then United States Senator Gordon Smith gave two examples of U.S. persecution. He pointed out that nativist groups were organized to supposedly "resist the insidious policy of the Church of Rome and other foreign influence against the institution of [the United States] by placing in all offices... nothing but native born Protestant citizens."⁹ Laws were passed that clearly discriminated against Catholics.¹⁰ Senator Smith, a devoted Latter-day Saint, noted that the same things happened with respect to his faith, "The Mormons were anti-slavery in Missouri; … [they were] forced to leave Missouri under attack from serious mob violence and an 'extermination order' from the governor of the state."¹¹  Joseph Smith, the founding prophet of The Church of Jesus Christ of Latter-day Saints, was later murdered by a mob in 1844, and Church members subsequently fled westward across the Great Plains. Both Catholics and Latter-day Saints thrive in the United States today. The Catholic Church is the largest denomination in the United States with over 74 million members.¹² The Latter-day Saint Church is the fourth largest with somewhat less than 7 million members living in the United States.

Notwithstanding these early aberrations that resulted in persecution, many of the founding fathers in the United States were committed to religious freedom. James Madison clearly favored religious pluralism. He stated, "In a free government the security for religious rights consist in a multiplicity of sects." ¹³

My plea today is that all religions join together to defend faith and religious freedom in a manner that protects people of diverse faith as well as those of no faith. We must not only protect our ability to profess our own religion, but also protect the right of each religion to administer its own doctrines and laws. Lord John Acton in 1862 said it this way, " … where ecclesiastical authority is restricted, religious liberty is virtually denied. For religious liberty is not the negative right of being without any particular religion, just as self-government is not anarchy. It is the right of religious communities to the practice of their own duties, the enjoyment of their own constitution, and the protection of the law, which equally secures to all the possession of their own independence."¹⁴

The two most important religious priorities in today's world are:

First, individual believers should be able to worship and express faith openly without fear of retaliation or ostracism; live openly according to religious beliefs; be free from discrimination in a particular occupation or profession because of religious beliefs; and to be free from religious discrimination in employment, housing, or traditional places of public accommodation such as: hotels, restaurants, and public transportation. This includes the 'freedom to believe' according to the dictates of one's own conscience without fear of governmental or private retaliation. This also includes the basic premise of democracy that no one should be punished based on the religious beliefs that he or she holds. Each family must have the right to worship and conduct religious activities within the home. In addition, each church member must be protected in employment, public office, and advocating in the public square. No person should be disqualified from participation in national life because of their religious beliefs.¹⁵

Second, protect religious organizations and their right to teach and function according to their doctrine and beliefs. This includes the freedom of a church to form a legal entity, to own and use property including schools, hospitals, educational institutions, etc., establish its doctrine, govern its ecclesiastical affairs (including employment), set requirements for church membership, conduct worship, and administer its sacraments and ordinances according to its doctrine, and to speak out on public issues.

The Current Status of Religious Freedom has been covered in an admirable way during this symposium. I sincerely hope and pray that the new memorandum from the Office of the Attorney General is a harbinger of a brighter day for religious freedom.

Many in this room, have been valiant in protecting the religiously inspired conduct of those who feel accountable to God. You have been engaged in the "fighting in the trenches" that has been going on in the United States for some time. Not all examples of incursions into religious freedom are clear cut. Refusing to terminate innocent life should be relatively easy to defend, as should protecting religious related institutions. Some others are not yet resolved.

The Church of Jesus Christ of Latter-day Saints asserts that those who want their rights protected must be willing to protect the rights of everyone else; we call this "Fairness for All." We see no justification in not giving to those who have same-gender attraction, and the LGBTQ community, protections including constitutional rights-to speak out, petition government, to assemble and interact, all without fear of reprisal; to live the lifestyle they choose openly without fear of retaliation or ostracism; to be free from discrimination in particular occupations or professions because of sexual orientation; to be free from discrimination in employment, housing and traditional places of public accommodation such as: hotels, restaurants and public transportation; to form businesses and organizations that serve LGBTQ individuals and groups; and to speak out on public issues and otherwise participate in the public square.

Our doctrinal commitment to be compassionate requires us to support these basic rights and to treat everyone with civility and respect.

We must also support the religious freedom of persons and institutions of all faiths as well as those with no faith. Two basic statements which demonstrate the Church's commitment to freedom of religion for all are: First, our Eleventh Article of Faith which declares "We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may." The second is a wonderful statement by the Prophet Joseph Smith who passionately asserted his commitment to civil and religious liberty when he said, "...I am bold to declare before Heaven that I am just as ready to die in defending the rights of a Presbyterian, a Baptist, or a good man of any other denomination; for the same principle which would trample upon the rights of the Latter­ day Saints would trample on the rights of the Roman Catholics, or of any other denomination who may be unpopular and too weak to defend themselves. It is love of liberty which inspires my soul-civil and religious liberty to the whole of the human race." ¹⁶ 

Catholics, Evangelicals, Jews, and Latter-day Saints, must be part of a coalition of faiths that succor, act as a sanctuary, and promulgate religious freedom across the world.^{17 18}

Notwithstanding historical foundations both in the U.S.A. and internationally, there is a chorus of those who do not respect accountability to God and feel perfectly comfortable in demanding that religions eliminate any doctrines that do not support their views. One professor has written a book titled Why Tolerate Religion?¹⁹ A prominent New York Times opinion writer, said, "Religion is going to be the final holdout and most stubborn refuge for homophobia." He then affirms the position of a gay advocacy leader, " … that church leaders must be made to take homosexuality off the sin list."²⁰ He conveniently equates conduct with same-gender attraction, refusing to recognize that one can respect and support people with same-gender attraction without embracing homosexual conduct. That is the issue.

This chorus of voices was lamented by an LDS apostle, Elder Neal A. Maxwell, many years ago. He said, "How can a society set priorities if there are no basic standards? Are we to make our calculations using only the arithmetic of appetite? Decrease the belief in God, and you increase the numbers of those who wish to play at being God by being 'society's supervisors. 'Such 'supervisors' deny the existence of divine standards but are very serious about imposing their own standards on society.''²¹

My fellow apostle, Elder Dallin H. Oaks,²² is a champion of religious liberty. He has pointed out, " … that the weakening guarantees of the free exercise of religion are not attributable to causes that are legal, but to changes in culture.The diminished value being ascribed to religious freedom stems from the ascendency of moral relativism … Today an increasing and influential group deny or doubt the existence of a God and insist that all rules of behavior are man-made, to be accepted or rejected as one chooses because there is no such thing as right and wrong. We live in an increasingly godless and amoral society."²³

In summary, here are a few of the essential questions that are of particular significance to all people who feel accountable to God.

•Will religious organizations continue to have the freedom to define and perform marriages solely between a man and a woman?

•Will laws barring discrimination against LGBTQ persons have appropriate religious exemptions and protections so that religious organizations and people of faith can act in accordance with their deeply held beliefs regarding marriage, family, and sexuality without retaliation?

•Will religious schools be permitted to have religious requirements for faculty, staff, and students?

•Will religious believers be excluded from certain professions because of their beliefs or expressions or actions regarding sensitive social issues?

•With the decline in religiosity generally, will religious exercise increasingly be limited to the home and places of worship, or will it continue to have a positive role to play in the public life of this great nation?

•Will religion come to be seen as dangerous-as something the law must protect people from rather than as a great good for individuals, society, and the state?

These and related questions highlight some of the challenges that religious organizations and individual believers will likely confront in the years to come. Constant vigilance will be necessary to preserve the great treasure of religious liberty for believers and for society at large.

How do we accomplish this? How do we defend the great treasure of religious liberty more than we have in the past? I am not talking about defending religious liberty legally. I believe many in this room, especially Becket, have been heroic in terms of defending religious liberty in the courts. Others, such as James Sonne, at Stanford, are doing the same thing in major educational institutions.

But in addition to legal and educational defense, we need to win the hearts and minds of the great people of this nation. We cannot do that when we are silent about issues that impact religious liberty. Elder Neal A. Maxwell (who by the way loved athletics), put it this way, "With regards to significant challenges we should not allow 'uncontested slam­ dunks.'" Elder Maxwell made it clear that those defending faith will not always win every negative encounter or prevent every unsavory episode.

My daughter, who is a lawyer, read this talk and with a smile on her face said, '"Do you have to use an athletic analogy? Couldn't you just simply say, those who love religious liberty should be diligent in defending against those who oppose it?"

In either case, the voices of people of faith need to be heard and amplified. When this is done, it creates a pause in the discourse and allows people to evaluate where they stand on a particular matter. Silence allows the rhythm of negativity to continue uninterrupted and unchallenged. This erodes the confidence of people of faith.

Two examples put this into perspective. In the September issue of The Atlantic, the front-page story titled, "How America Lost Its Mind" is based on a book titled, Fantasyland: How America Went Haywire: A 500- Year History. The author, Kurt Andersen, argues that, "America was created by...people uniquely susceptible to fantasy, as epitomized by everything from Salem's hunting witches to Joseph Smith's creating Mormonism."²⁴ It would be fair to say that the "Fantasyland" in the title is Christianity.

The New York Times book review of September 5 featured this book. The reviewer, Hannah Rosin, stated in a dismissive way, "While the most persistent thread in "Fantasyland" is Christianity—the astounding number of Americans who believe in heaven and angels, which most of Europe gave up decades ago..."²⁵

Not surprising with so much publicity, the book rose on the week of September 10 on the Amazon charts to number three "most sold" in the United States.

We in this room would all defend freedom of speech. However, when there is little or no response, as I previously noted, the rhythm of this kind of negativity, which dismisses the spiritual foundations of a third of the population who are believers-Christians and Jews, can erode religious commitment which is so seminally significant to this country. This orchestrated effort by those opposed to people of faith should at the very least have been contested.

A subsequent event is a good example of what should happen when people are dismissive of religious values. Professor Amy Barrett was nominated to serve as a United States Circuit Judge on the U.S. Court of Appeals for the Seventh Circuit. In the Senate Hearings, Senator Diane Feinstein openly challenged Barrett, speculating that Barrett's Catholic faith would lead her to ignore Supreme Court precedents. Senator Feinstein stated that "...the dogma lives loudly within [Barrett], and that's a concern..."²⁶ Senator Dick Durbin posed a similar challenge to Barrett's nomination, and is reported to have said, "Do you consider yourself an orthodox Catholic?"²⁷ Implying that her faith was a problematic factor in her proposed service as a judge.

In this matter voices were raised immediately including the presidents of Notre Dame and Princeton who sent letters objecting to the inappropriate characterization of Professor Barrett's faith. ²⁸ In addition, Archbishop William E. Lori, chairman of the Catholic Bishops' committee on religious liberty declared, "People of faith, whatever faith they may hold, should not be disqualified because of that faith from serving the public good." ²⁹ The result was that a pause was created in the discourse and those who denigrated faith were suddenly on the defense.

My point is really quite simple. When allegations are made that are detrimental and often false to either faith or religious liberty, the members of that faith and their friends of other faiths, who feel accountable to God, need to defend them in a positive statesman-like manner. We need to defend divinely inspired freedoms. Too many do not make their positive views known when their engagement is sorely needed.

Some are concerned they would be getting ahead of the respective leaders of their faiths. I would suggest that for people of your capability and training, engagement to defend religious liberty is essential. It can take many forms. It may be as simple as posting something in defense of your faith or the faith of your friends. Please do this on your own volition, understanding that you will not always get things exactly right. But also understanding, that the far bigger mistake would be to sit silently by.

Let me say again, we will not always win every attack that is made on faith and religious liberty; but there should not be a vacuum of positive voices. Our response should be statesman-like and respectful, but at the same time, firm. I respectfully suggest that in defending faith and religious freedom against its opponents there should be no "uncontested slam-dunks."

But we need not always be overtly aggressive in our response. We can do a better job of teaching and educating our responsible friends of the essential value of religious liberty and its importance in protecting our shared values. The inalienable human rights enshrined in our Constitution are inalienable only insofar as these rights are bestowed by a Divine Creator. It is the accountability to a Divine Creator that is the foundation for assisting those in need, respecting fellow citizens and respecting and following the law. To the extent these human rights are merely the creation of Man, they are at risk of becoming alienable, or being removed by Man. To this end, religious liberty is foundational to all other human rights. It is in the best interest of anyone concerned with human rights, even atheists and non-believers, to protect religious liberty. We can and must do a better job of communicating our shared mutual interests.

How People of Faith Live Their Lives is Extremely Important

In addition to this counsel, those of us who feel accountable to God have a responsibility to live upright lives of service to God and our fellowmen, to obey the law, and to be good citizens, neighbors, and friends in all we do. As we do so, ordinary citizens and government officials alike will be more inclined to see the value of religion and to respect the basic principles that allow us to freely live it. There is no better demonstration of the great benefits associated with religious liberty than for devoted members of various faiths who feel accountable to God to model principles of integrity, morality, service, and love. As others see the goodness of individuals and families-goodness that is founded in strong faith and character-they will be much more likely to speak up in defense of the religious freedoms that allow us to be who we are.

Thank you.

1. Mark Scott, "From England to Africa, It's Everyone' s Magna Carta," The New York Times, Thursday, Mar. 19, 2015, Fl9

2. Nigel Saul, "The Kingdom's First Charter," Country Life, Jan. 21, 2015, 59.

3. The Declaration of Independence, July 4, 1776, The unanimous Declaration of the thirteen United States of America.
   

4. The legal writer known as Bracton was to write in Henry Ill's reign, 'in England  the king is below God and below the law'.  Cited by Nigel Saul in "The Kingdom's First Charter," Country Life , Jan. 21, 2015, 55.
   

5. Office of the Attorney General, Washington D.C; October 6, 2017, Memorandum. Subject: Federal Law Protections for Religious Liberty.
   

6. James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in 5 THE FOUNDERS' CONSTITUTION 82 (Philip B. Kurland & Ralph Lerner eds, 1987).

7. Kevin Phillips, The Cousins' Wars, 94.

8. Brigham Young University Law Review, Vol. 1999, No. 2, Senator Gordon Smith, Religious Liberty in the 21st Century. 488, citing W. Russell, Maryland: The Land of Sanctuary 130 (2D ed. 1908).

9. Ibid, 491-492. The Know-Nothings were organized based on this insidious notion.

10. http://en.wikipedia.org/wiki/Blaine_Amendment.

11. Ibid, 492, citing Leonard J. Arrington and Davis Bitton, The Mormon Experience:  A History of the Latter-day Saints, 44-45 (1979); Stephen C. Lesuer, The 1838 Mormon War in Missouri (1987).

12. Wall Street Journal, Sat.-Sun. Jan. 3-4, 2015, AS.

13. See James Madison, Constitutional Debates, June 12, 1788.

14. Lord John Acton, "The Protestant Theory of Persecution," in Essays on Freedom and Power, (Gertrude Himmelfarb, ed., I 948), 90.

15. Quentin L. Cook, Seymour Institute Seminar on Religious Freedom, Accountability to God: Religious Freedom and Fairness, July 26, 2017.

16. Joseph Smith, Discourse in Nauvoo, Illinois (July 9, 1843), as reported by Willard Richards, in History of the Church 5:498-99.

17. After World War II the Universal Declaration of Human Rights and other international agreements established the legal framework for the protection of religious freedom. Almost 69 years ago, on December 10, 1948, the Universal Declaration was adopted. That document declares that, "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

18. U.N. G.A. Res.217 A (III), art. 18 (1948) [hereinafter Universal Declaration].

19. Brian, Leiter, Why Tolerate Religion, Princeton University Press, 2010.

20. Frank Bruni, "Same-Sex Sinners?" New York Times-Sunday  Review, Apr. 5, 2015, 3.

21. Neal A. Maxwell, 'The Prohibitive Costs of a Value-free Society," Ensign , Oct. 1978, 52-53.

22. Dallin H. Oaks, As a young man he served as editor of the University of Chicago Law Review. He subsequently clerked for then Chief Justice Earl Warren on the United States Supreme Court. He also served as a professor of the University of Chicago Law School, president of Brigham Young University, and a justice on the Utah State Supreme Court. He was called as an apostle in The Church of Jesus Christ of Latter-day Saints in 1984.

23. Dallin H. Oaks, "Challenges to Religious Freedom," Address at the Argentina Council for Foreign Relations, Apr. 23, 2015.

24. Kurt Anderson, "How America Lost Its Mind," The Atlantic, September 2017, 80.

25. New York Times Book Review by Rosin, Hanna, September 5, 2017, " FANTASYLAND, p. 1-3.

26. Michael Gerson, "Senate Democrats show off their anti-religious bigotry," https://www.washingtonpost.com/opinions/senate-democrats-show-off-their-anti-religious-bigotry/2017/09/14/30f11e5e-9970-11e7-82e4-f1076f6d6152_story.html. See also, Aaron Blake, "Did Dianne Feinstein Accuse a Judicial Nominee of Being too Christian?" https://www.washingtonpost.com/news/the-fix/wp/2017/09/07/did-a-democratic-senator-just-accuse-a-judicial-nominee-of-being-too-christian/. 

27. John Kass, "Durbin, Democrats reveal their bigotry in questioning of judicial nominee from Notre Dame," https://www.chicagotribune.com/columns/john-kass/ct-federal-judge-catholic-kass-met-0913-20170912-column.html.

28. Durbin, Feinstein and Catholic Judges," https://www.chicagotribune.com/opinion/editorials/ct-edit-catholic-judges-durbin-feinstein-0912-20170911-story.html.

29. Kevin Freking, "Catholic Leaders Decry Democrats ' Questioning of Judicial Pick," https://www.chicagotribune.com/nation-world/ct-judicial-pick-democratic-questioning-20170911-story.html.