Introduction
My dear friends, how I wish I could be with you in person this evening! Fifty-six years ago, I arrived in Britain as a newly minted missionary. I had been called to what was then the Central British Mission. Our mission headquarters were in Sutton Coldfield, outside Birmingham. After a night in the mission home, I boarded a train for the day-long trip across the Midlands and East Anglia to Felixstowe on the coast-my first area of service. Felixstowe and Cambridge were both in the Ipswich District of the mission in those long-ago days. And so, in those first particularly memorable weeks and months of my mission, I often visited Cambridge. More than a half-century has now passed. How I would like to have wandered those Cambridge streets again today!
I am most grateful to Associate General Counsel Bill Atkin for stepping in at the eleventh hour. In addition to his own remarks, he has graciously offered to distribute to you the message I had intended to deliver. It follows.
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You are gathered in this conference to discuss the rule of law, one of the great principles of our shared Anglo-American legal tradition. It has protected us against many of the evils that have troubled countries whose legal traditions do not share that principle. As leaders and members of the United Kingdom and Ireland Chapter of the J. Reuben Clark Law Society, you should be commended for bringing together a remarkable group of scholars to discuss a legal principle with profound spiritual implications. And it's those spiritual aspects of the rule of law that I want to talk about here.
I have spent nearly a quarter century serving, not only as general counsel of The Church of Jesus Christ of Latter-day Saints, but also as a general ecclesiastical officer. Those unique positions have caused me to reflect on the connection between the rule of law and the basic Latter-day Saint doctrine of moral agency.
And so the theme of my remarks this evening is "How the Rule of Law Safeguards Moral Agency."
The Rule of Law Constrains the Exercise of State Power.
A well-known definition holds that the rule of law "means that government in all its actions is bound by rules fixed and announced beforehand-rules that make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge." 1 Scholars may debate the fine points of this definition. But I want to highlight its basic attributes.
First, the rule of law constrains the exercise of "coercive powers." 2 Modern governments hold vast powers over our day-to-day activities. Some of those powers are largely benign. Few would argue with the government's power to protect life, liberty, and property or to ensure clean air and safe food. But government powers can be taken too far. The power to protect national security or to punish crime can be misused for unjust arbitrary purposes. The prospect that government's "coercive powers" may be abused-and the need to limit and constrain those powers to prevent such abuse-is the animating purpose behind the rule of law. That skeptical view of power is reflected in Lord Acton's famous dictum that "power tends to corrupt, and absolute power corrupts absolutely." 3
Second, the rule of law constrains government power by requiring it to operate through "rules fixed and announced beforehand." 4 It is much harder for government to act arbitrarily if it must operate through settled rules. As lawyers, we know that changing rules changes outcomes. A property boundary recognized on a map can alter valuable rights if it is shifted ever so slightly in one direction or another. Of course, laws and even constitutional doctrines evolve. But they should change through the regular and orderly procedures prescribed by law- not through the casual caprice of a government decision maker.
Third, the rule of law is binding on "government in all its actions." 5 By this principle, government officials may not excuse themselves from obeying the same laws that bind private citizens. Those who wield government power are not above the law in their official or private capacities. And there is no special category of government actions that is totally immune from the obligation to follow settled rules and norms.
These features of the rule of law allow us to plan and live our lives with the assurance that government will exercise its awesome powers based on established principles and procedures rather than on whim or personal preference. That ability to plan our own lives is essential to liberty. The rule of law makes us free to choose what education to obtain, what profession to pursue, where we live, where we work, and countless other details that make up the texture of our lives without fearing that the government will arbitrarily impede or penalize our choices.
England's Great Contributions to the Rule of Law Influenced the American Constitution.
I have been a lawyer and student of the law for nearly half a century. So I must say that I am deeply grateful to Great Britain for cultivating and refining the rule of law. Americans-and indeed the world-owe your legal forbearers a tremendous debt of gratitude.
Magna Carta, whose 800th anniversary we commemorated last year, powerfully symbolizes the victory of law over arbitrary power. The rights and liberties wrested from King John at Runnymede resonate even today. Above everything else, Magna Carta has given us a legal tradition devoted to the principle of government under law.
Magna Carta also gave America's Founders a vocabulary of liberty under law. Key concepts like "no taxation without representation" and "due process of law" made their way into debates over whether America should declare independence and, once independent, how the new country should govern itself. Above all, Americans learned from their English forbearers a basic loyalty to law as an organizing principle of civilized life. Of eighteenth century Americans, Edmund Burke said that "[i]n no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the [Continental] congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science." 6
This widespread legal knowledge based on English history and legal precedent taught those early Americans not only the importance of the rule of law but a deep love and respect for it.
The Rule of Law Helps Safeguard the Exercise of Moral Agency.
But important as the rule of law is in its own right, my deeper concern today is with its spiritual significance. What is it about this feature of Anglo- American legal systems that holds surpassing importance for those of us who are Latter-day Saints?
Six months ago, it was my privilege to address the annual meeting of the J. Reuben Clark Law Society in Philadelphia, the birthplace of two documents sacred to American legal tradition-the Declaration of Independence and the Constitution of the United States. I entitled those remarks, "The Crucible: the Atonement, Moral Agency and the Law". In that address, I sought to answer this question- what is it about Anglo-American legal tradition that is so important to Latter-day Saints? This evening, I would like to return to what I said on that occasion.
To Latter-day Saints, the significance of the rule law lies in our Heavenly Father's divine gift of moral agency to each of us. The rule of law-and the incidental, noncommercial Church or home purposes requires the permission of the religious liberty it safeguards-helps protect our moral agency to claim the eternal blessings of the Atonement of Jesus Christ. It is this agency that is the crucible-the fiery furnace of adversity and decision-in which we determine our eternal destiny. It is the crossroads, and sometimes the "cross," where each of us decides whether or not to choose Christ and His commandments. Exercising that agency is the very purpose of mortal life. Protecting that crucible, therefore, is vital to salvation and the great plan of happiness. If the exercise of that agency is compromised, the conditions of salvation likewise risk compromise.
Some well-meaning people speak of religious liberty as if it should be a license to do anything their religious sensibilities prefer. Some invoke their "conscience" to demand broad freedoms for what are mostly just personal preferences informed by religion. But for us, who understand the basic principles of the restored gospel, religious freedom is much more. It protects our agency- our divine right-to choose to follow Jesus Christ. Our fundamental freedoms also protect the right of others to make a different choice. Moral agency-that right to choose or reject Christ-is the great crucible of this mortal experience. God has inspired the rule of law to preserve and protect that agency, for us and for all.
To explain why, let me begin by reviewing some basic gospel doctrines. In the premortal realm, a grand council was convened. God the Father, the Great Elohim, gathered about Him His vast spiritual posterity. We were there, you and I. As every mortal parent should appreciate, God wanted only the best for His children. Indeed, His deepest desire was to confer upon each and every one of us the infinite blessings of His greatest possible gift: eternal life and exaltation. He had a plan, a redemption plan, if you will, for conferring these blessings. The purpose of this council was to present His plan and to obtain our concurrence. Unlike mortal probate proceedings, conferring this matchless gift was nowhere near as simple as just making out a will and then passively dispensing these riches under the benevolent supervision of the Great judge. No, there were conditions that needed to be satisfied first. The very majesty of the gift He sought to confer required that, as His heirs, we had to qualify for these blessings. We had to become like Him. Our spiritual bodies needed to be cloaked in physical ones, and, once in that physical state, we had to choose to be like Him-to submit to His will, and to do so under circumstances where there really was a choice. Those were to be the conditions of our inheritance, conditions that we enthusiastically embraced.
But not everyone did. There was vigorous opposition to His plan. Some advocated an easier way. They wanted the majesty, the power and influence, of Elohim without the qualifying steps. "Why risk it?" they in effect said. We will forfeit the agency, the right to choose, just give us the blessings anyway. They would not, or could not, understand that exaltation can be attained only by offering our "whole souls as an offering unto" God (Omni 1:26)-not as slaves, but freely, as "agents unto [our]selves"(Moses 6:56). Thus, they fell victim to the perfidious sophistry of Lucifer, described in scripture as a "son of the morning" (Isaiah 14:12), whose real goal was to rob God of His power and subject all God's children to his will. In a tragic, irreversible exercise of agency in that "first crucible," his followers were willing to forfeit their agency to Satan, who sought to lead us "captive at his will" (Moses 4:4), rather than follow the plan of our Heavenly Father, who sought only to liberate and exalt us. And so they were cast out, preceding the rest of us to this telestial sphere. Here they would wander, unadorned with a physical body, condemned forever by the tragically unwise choice they had made while still in the presence of God.
The conflict in the premortal realm between the plan put forward by Elohim and Jehovah and the opposition to that plan, led by Lucifer, did not end when Satan and his minions were cast out. Only the venue has changed. That same conflict continues to rage in this mortal sphere. Lehi taught that "there is an opposition in all things"(2 Nephi 2:11). The opposition of Lucifer and his legions to Elohim's plan is what creates the opportunity for meaningful choice between good and evil, right and wrong, as we each take our turn on earth. It provides the "second crucible" in which we exercise our agency to follow or reject Heavenly Father's plan.
But as each of us knows all too well, choosing the right under the conditions of mortality is anything but easy. Temptations abound, and Lucifer seems always lurking in the shadows of life. We make mistakes. We commit errors of judgment. We succumb to his enticements. We commit sin. And so, again quoting Lehi, "there is no flesh that can dwell in the presence of God, save it be through the merits, and mercy, and grace of the Holy Messiah" (2 Nephi 2:8). A Savior is needed, one willing to step forward and make divine amends for our poor decisions and associated miseries. And a probationary time is also required-a time to prepare to meet God, a time to claim the blessings the Savior extends to us.
We are indebted to a young, temporarily errant missionary named Corianton for what may be the most profound sermon ever preached regarding the interaction of justice, mercy, and moral agency in this probationary state. The sermon was by his father, Alma, who taught that this probationary- or preparatory-state is a "time granted unto man to repent, yea, a probationary time, a time to repent and serve God" (Alma 42:4). He then explained the interaction of justice and mercy in this preparatory state:
"Therefore, according to justice, the plan of redemption could not be brought about, only on conditions of repentance of men in this probationary state, yea, this preparatory state; for except it were for these conditions, mercy could not take effect except it should destroy the work of justice. Now the work of justice could not be destroyed; if so, God would cease to be God ....
"And now, the plan of mercy could not be brought about except an atonement should be made, therefore God himself atoneth for the sins of the world, to bring about the plan of mercy, to appease the demands of justice, that God might be a perfect, just God, and a merciful God also" (Alma 42:13, 15).
Alma then declares this profound axiom of moral agency: "Therefore, my son, whosoever will come may come and partake of the waters of [eternal] life freely" (Alma 42:27, emphasis added). Whosoever will come may come-divine love and grace in five words! It is a matter of choice! Justice and mercy-the two grand principles of eternity are placed in equipoise by "God himself [who] atoneth for the sins of the world." Thus, the playing field in this mortal sphere is perfectly leveled for the exercise of moral agency, this right to choose "eternal life, through the great Mediator of all men, or to choose captivity and death, according to the captivity and power of the devil" (2 Nephi 2:27).
Whosoever will come may come! Jesus Christ came to atone for sin. His matchless sacrifice and Resurrection were a divine gift and overcame both physical and spiritual death. Immortality was a free gift to all. But exaltation- overcoming spiritual death and returning to God's presence--was conditioned on our choosing to live a righteous life, as defined by Him. Again quoting Lehi, "Adam fell that man might be; and men are, that they might have joy" (2 Nephi 2:25). The joy of which Lehi spoke would come only from making righteous choices. Hence, moral agency became the crucible of our mortal experience.
How we exercise moral agency will determine our eternal destiny. This is such basic doctrine that I will not dwell further on it. I call attention to it as a reminder of the axiom that the exercise of moral agency is the purpose of mortality. It exists for every son and every daughter of God. Each has the God- given right to make basic moral choices. That right is not subject to your idea, or my idea, or anyone else's idea of what the "correct" choices are.
Moral agency is the furnace of adversity and decision where we determine our eternal destiny. It is our divine right to choose to follow Jesus Christ, to exercise faith, repent, make and keep sacred covenants, raise our children in the faith, worship together, and preach the gospel. Man's law exists fundamentally to protect this moral agency. The rule of law constrains the exercise of power in order to protect individual freedom and makes possible the exercise of moral agency to follow Christ and live His gospel.
Let me provide a practical example where the rule of law matters for religious freedom. Temples and meetinghouses are indispensable to our worship. Each week we gather with other Latter-day Saints in meetinghouses to worship through prayer, music, and the spoken word and to participate in the Sacrament of the Lord's Supper. In that sacred ordinance, we renew covenants made with God at baptism and receive the spiritual cleansing that comes from true repentance. In temples we participate in the most sacred rites and ordinances of the gospel and make further covenants that are essential to salvation and exaltation. With rare exception, these sacred activities can only occur in a meetinghouse or temple. But laws determine where and when and how a meetinghouse or a temple can be built. The rule of law ensures that fair standards and impartial decision making, not anti-religious hostility, are the deciding factors when government determines whether to permit the construction of buildings. Without the rule of law, it would often be impossible to build these sacred structures, which would greatly hinder Church members in exercising their moral agency.
Religious Freedom and Compromise.
For Latter-day Saints, then, the rule of law is vital to protect moral agency, this sacred right of each person to choose according to the dictates of their own conscience in the central aspects of life. Religious liberty can exist when law and secular government align with this eternal principle. Doctrine and Covenants 134:2 declares: "We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience [or moral agency]."
Freedom of religion is grounded in much more than our desire to act according to religiously based preferences. True freedom of religion or conscience is grounded in the ability to choose between good and evil in our own lives, while allowing others to have that same choice in theirs.
It is true, of course, that the law unavoidably embraces a system of values. And in the ideal, those values would correspond to the truths of the gospel of Jesus Christ. However, the reality is that in this world the law rarely attains the ideal. Mosiah taught that in a perfect world, "just men" serving as "kings ... would establish the laws of God, and judge [the] people according to his commandments" (Mosiah 29:13). But the world is not perfect, and history teaches that the kings of this world have more often been tyrannical than just. So, in the alternative, the Lord inspired representative self-government where people of widely disparate views are meant to come together in a spirit of compromise to reach for what each believes is ideal while maintaining the dignity of moral agency for all. Protection for core rights and compromise are the guiding principles of governance in democratic societies.
A hierarchy of religious liberty values.
Since we live in a time when our beliefs and values are in the minority, it has become vital for Latter-day Saints to understand which religious freedoms are essential for preserving our moral agency to choose Christ and live His gospel. Not all religious liberty claims are "created equal." In a democracy where we must make compromises, it naturally follows that we must have something of a hierarchy of religious liberties that distinguishes between freedoms that matter profoundly and thus can't be compromised and others that are less important and thus subject to reasonable compromises.
The Innermost Core. Certain freedoms are at the core of religious liberty because they lie within a fundamentally private sphere. On these freedoms, there is not much room for compromise. They include freedom of belief; freedoms related to family gospel teaching and worship; freedom to express your beliefs to another willing listener, such as missionary work; freedoms related to the internal affairs of churches, including the establishment of Church doctrine, the selection and regulation of priesthood leadership, and the determination of membership criteria; and the freedom to build temples and meetinghouses within the framework of fair and reasonable land-use regulations. These rights include the same right of free speech and expression in the public square as any other citizen; the freedom to publish beliefs; the freedom to debate public policy, including controversial matters on equal terms with other citizens; and the freedom to petition the government for protection of one's interests. These are the freedoms inherent in one's citizenship in a free country and are nonnegotiable.
Near the core. Next is a cluster of rights very near the core. These include the right not to be punished, retaliated against, or excluded from one's profession or employment based solely on one's faith. England long ago abandoned a religious test for public office. Similarly, there should be no religious test for working in the various professions regulated by the government. Those with traditional beliefs regarding marriage, family, gender, and sexuality should not be excluded from being professional counselors, teachers, lawyers, doctors, or any other profession where the government grants licenses.
Rights of religiously important nonprofit organizations. Near these core interests are freedoms that relate to religiously important nonprofit functions carried on by religious organizations and religious schools, colleges, and universities. Nonprofit religious organizations should have the freedom to have employment policies that reflect their religious beliefs and ensure that those they hire believe in and uphold their religious mission. Religious colleges like Brigham Young University should have the freedom to establish honor codes that reflect their religious teachings. Religious charities should have the right to conduct their good works according to the dictates of their respective faiths.
Moving beyond the core. However, as we move beyond these core interests into more commercial settings, our expectations of religious freedom must be tempered. This is not because commerce is unimportant but because it overlaps with what for decades have been considered human rights, such as the right not to he discriminated against in employment or denied service at a place of public accommodation based on certain characteristics. Claims by business owners for religious freedom are strongest in small and intimate family business settings and correspondingly weaker in large and impersonal corporate settings. In these commercial settings defenders of religious freedom will often have make prudential compromises.
The outer circle. Finally, there are zones where assertions of religious liberty are much weaker. Some of these pertain to government services, where officials are required by law to perform certain functions. In these areas, religious beliefs should be reasonably accommodated, but other governmental interests may significantly limit the degree of accommodation. To choose one illustration from a controversy that dominated American news a couple of years ago, if it is your job to issue marriage licenses as a government employee, then your freedom to refuse to issue licenses for marriages that are contrary to your religious beliefs may be very limited.
In summary, religious freedom is the most basic of all liberties. It is the freedom to order one's life according to one's core convictions. By protecting that freedom, the rule of law safeguards the crucible of moral agency, where we exercise our God-given right to decide whether to follow God's plan and accept Christ as our Savior. But because we live in democratic societies that require compromise among competing interests, we must acknowledge a hierarchy of religious freedoms and set priorities. Those freedoms that relate to private and ecclesiastical contexts, or are part of the rights of all citizens, are the most basic and least subject to compromise, while those that relate to commercial and governmental settings will of necessity require greater pragmatism and compromise.
Conclusion.
In closing, let me offer some challenges for you to consider.
Each of you has a vital role to play in promoting and preserving the rule of law and religious freedom. Raise your voices against the arbitrary exercise of power and intolerance toward people of faith and their vital institutions. The rule of law assumes limits to what government can coerce, and those limits must include meaningful areas of personal, family, and community life where faith can be freely exercised. Members of the Church can speak up for religious freedom, not only for the Church and its members but for anyone whose freedom is threatened. And by being "an example of the believers" (1 Tim. 4:12), you can convince others of the good that religion does for society, which will lead them to respect religious freedom. Finally, those of you who are friends but not members of our faith, we ask you to work with us to defend the rule of law and the religious freedom it makes possible. We all have a profound interest in defending each other's basic freedoms.
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F.A. HAYEK, THE ROAD TO SERFDOM: THE DEFINITIVE EDITION 112 (Bruce Caldwell ed., 2007).
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Id.
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Letter from Lord Acton to Mandell Creighton, Apr. 5, 1887, 1·eprinted in 2 JOHN EMERICH EDWARD DALBERG·ACTON, FIRST BARON ACTON, SELECTED WRITINGS 383 (1986)
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HAYEK, THE ROAD TO SERFDOM, at 112.
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Jd. (emphasis added).
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Burke, REFLECTIONS, at 170.