The part of Elder Oaks’ speech that everyone ignored

Elder Dallin H. Oaks’ address last week on religious liberties at Brigham Young University-Idaho triggered some strong reactions.  Many of the criticisms seem directed at this statement, comparing harassment or violence against members of the Mormon Church to that experienced by civil rights advocates in the 1950′s and 1960′s:

“. . . [W]hile this aggressive intimidation in connection with the Proposition 8 election was primarily directed at religious persons and symbols, it was not anti-religious as such. These incidents were expressions of outrage against those who disagreed with the gay-rights position and had prevailed in a public contest. As such, these incidents of “violence and intimidation” are not so much anti-religious as anti-democratic. In their effect they are like the well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation.”

The Salt Lake Tribune quotes Jeanetta Williams, president of the Salt Lake City NAACP, as saying: “I don’t see where the LDS Church has been denied any of their rights.  What the gay and lesbian communities are fighting for, that is a civil-rights issue.” Her sentiment echoes that of many bloggers, including some who might otherwise expected to support religious liberties.  (For a thoughtful comparison of the claims of persecution by Mormons and gays, see Thomas Jefferson School of Law prof Kaimi Wengner’s post on Times and Seasons.)

I agree with these critics that the cases of harassment, vandalism, or violence experienced by Mormons over the last year as a result of Prop. 8 are small peanuts compared to the widespread, institutionalized acts of intimidation in the Civil Rights Era.  And when he was asked, Elder Oaks agreed that the intimidation “was not as serious as what happened in the South.” But most of these bloggers seem hung up on the fact that they consider gay marriage a civil rights issue, focusing on the large amounts of money donated by Mormons to the Prop. 8 campaign.  In the process, they miss the point and discount the valid concerns in Elder Oaks’ speech.

I still think the voting intimidation issue is an important one. Any time violence, vandalism, or threats are used to achieve or discourage participation in the democratic process, that’s a civil rights violation.  The intimidation does not—and should not—have to rise to the level of 1960 Birmingham to be considered wrong.  Nor should you have to agree with the intimidated parties for the intimidation to violate a civil right.  As Elder Oaks noted, the hostility directed towards Mormons stems more from political disagreement than religious disagreement.  (A few media outlets have observed the inconsistency of this response.)

But focusing on same-sex marraige clouds the rest of his arguments, and they deserve consideration. Although other intelligent people disagree, the focus of the speech was not Prop. 8 or same-sex marraige.  Rather, it was on the threats to American religious liberties in general.  Elder Oaks said Prop. 8 was not the primary inspiration for the talk, and he seemed to focus much more on challenging the notion that religion does not belong in the public square.  It seems his primary focus was to address movements such as Richard Dawkins-esque “new atheism” rather than same-sex marriage proponents.  While gay rights supporters don’t like the Mormon Church’s involvement in the Prop. 8 campaign, a growing number of atheists in America think the Mormon Church or any other church shouldn’t even be allowed to participate in public discourse. That hostile position holds wider consequences than one state voter referendum.  A lesser concern in Elder Oaks’ talk was that of religious tests for public office, a topic he acknowledged stemmed from Mitt Romney’s 2008 Republican Primary campaign.  Elder Oaks is making his argument for what he thinks is the appropriate role of religion in society, and he’s looking at groups like the Center for Inquiry or anti-Mormon evangelical groups just as much as he’s looking at a group like Equality California.

Unfortunately, Elder Oaks’ multi-faceted argument seems to have been ignored as soon as he uttered the phrase “Proposition 8.”  Some seem to even to have confused his remarks to say that gay-rights advocates are mostly atheists, a reading that I don’t think is supported by the text of the address.  Though you may disagree with his conclusions, it is clear that Elder Oaks is no dummy.  Other law professors, such as the University of Michigan’s Douglas Laycock, agree with him that the backlash on Prop. 8 carries free speech concerns.  Professor Laycock noted that courts in Sweden and Canada have ruled unconstitutional preaching that homosexuality is a sin, so in the U.S. “it’s not unimaginable.”   Bloggers and legal scholars alike need to break out of the gay marriage paradigm and take an honest look at the future of religious liberties in order to find an appropriate balance between the free exercise clause and the establishment clause.

Photo credit: Intellectual Reserve. Low-resolution photo used pursuant to fair-use provisions of 17 U.S.C. § 117.