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Scott G Winterton, Deseret News
Elder Dallin H. Oaks, speaks Wednesday, April 16, 2014 at a constitutional symposium on religious freedom at the UCCU center at Utah Valley University in Orem.
I fear that free speech is diminishing as a result of the chilling effect of mostly invisible restraints, even censorship. —Elder Dallin H. Oaks

OREM — Despite an "alarming trajectory" of incursions on religious freedom, there is hope for the future, Elder Dallin H. Oaks of the LDS Church's Quorum of the Twelve Apostles said Wednesday night.

"Religion is being marginalized to the point of censorship or condemnation," he said during the keynote address of Utah Valley University's Constitutional Symposium for Religious Freedom. About 4,000 attended the campus lecture at the UCCU Center.

"I believe we live in a time of diminishing freedom of speech," he added.

However, Elder Oaks listed numerous reasons why "my final conclusion is a message of hope."

"One reason for optimism is that the threats to religious speech and religious freedom have become so notorious that our citizens are beginning to become concerned," he said.

The address marked his first legal lecture since 1985, a year after Elder Oaks left the Utah Supreme Court for full-time service as an apostle in The Church of Jesus Christ of Latter-day Saints.

He didn't comment directly on any cases now in federal courts but criticized two legal techniques or arguments he said are being used to push religion out of the public square, drew a parallel between them and the U.S. Supreme Court's infamous 1857 Dred Scott decision denying judicial access to blacks, and offered advice for religious people and groups moving forward.

"Court contests will continue," he predicted. "Some decisions will help the effort of long-term conciliation and some will aggravate it. But in the long run, we have reason to hope that the guarantees and system of government established in our inspired Constitution will see us through these controversies as with others in times past."

Current concerns

"I am one of the many religious persons who have decried the alarming trajectory of theories, court decisions and executive actions that are diminishing the free exercise of religion," Elder Oaks said.

His address, given at the invitation of UVU's Center for Constitutional Studies, temporarily "calls me out of legal retirement," he said.

Elder Oaks resigned as a justice of the Utah Supreme Court in 1984. Nearly a year later, he kept a commitment for what became his last previous legal lecture, at DePaul University's Center for Church-State Studies. In that appearance, he made predictions that government accommodation of religious activities would increase, as would government regulation of religion, and that churches and religious people would need to protect their interests with increased legislative lobbying.

Some cases have run counter to his prediction, he said Wednesday, "but for me it represents a generally accurate forecast of the movement of church-state law in the 30 years since I offered it."

Wednesday's comments centered on current legal arguments "of long-range concern."

Elder Oaks maintained that freedom of speech and the free exercise of religion doubly protect religious liberty, but he said there are reasons to be concerned about the vitality of both.

"I fear that free speech is diminishing as a result of the chilling effect of mostly invisible restraints, even censorship."

He cited a number of examples but then added another, one "very personal to me," of the boycotts, firings and intimidation of those who backed Proposition 8 — defining marriage as between a man and a woman — in California. He mentioned the recent resignation of Mozilla's new CEO over a $1,000 donation he made to Proposition 8 six years ago.

Elder Oaks called it "another unfortunate example of bullying and intimidation that too often seeks to censor speech in the public square."

Two techniques

Elder Oaks criticized two legal techniques being used to push religion out of the public square.

The first is the idea of public reason, which he called an "incredible claim that laws cannot be based on religious morality" and that "religion is said to be a private rather than a public matter."

The assertion of public reason has figured in some recent court decisions on same-sex marriage, but Elder Oaks said he chose to talk about it because of its relationship to free speech.

"Religious voices, values and motivations are being crowded out of the public square," he said, because of the theory, first widely discussed in academia and now emerging in court opinions.

He also described "a companion technique" of dismissing religious values and arguments as irrational or reflecting "impermissible animus (hatred)."

"Accusations of bigotry or animus leveled at those who promote an adverse position have a chilling effect on speech and public debate on many important issues," he said. "Both freedom of speech and freedom of religion are jeopardized when their advocates are disparaged as being motivated by hatred."

A parallel

Free speech is demeaned if it is rejected in a public setting, like a court case, because of the assumed motives of the speaker or if the speech is disqualified based on stereotypes affixed to the speaker, he said.

Elder Oaks referred to the 1857 Dred Scott decision in which the U.S. Supreme Court ruled that blacks had no right of access to federal courts.

"I see a parallel between denying judicial access to a person on racial grounds and excluding public consideration of a person's opinions on religious grounds."

He added, "I submit that religious leaders and religiously motivated persons should have the same privileges of speech and participation as any other persons or leaders, and that churches should stand on at least as strong a footing as any other corporation when they enter the public square to participate in public policy debates."

Reasons for hope

In his view, religious people have multiple reasons for hope.

"I am optimistic in the long run," he said, because of the guarantees of the First Amendment, the Religious Freedom Restoration Act and the growing concern of Americans.

He also hailed new efforts to bring leaders of different faiths together for the common cause of defending religious liberty. Some efforts "are crossing denominational lines that were insurmountable a few years ago."

He also cited the advent and success of religious freedom advocacy organizations, academic centers on religion and the law at major universities, professorships or programs in religious studies, as well as journals on law and religion.

Elder Oaks said his last cause for hope is rooted in a belief in the principles of mutual understanding and accommodation.

"In this circumstance of contending religious rights and civil rights, all parties need to learn to live together in a community of goodwill, patience and understanding."

He cautioned against extreme, polarizing voices on either side.

"I believe that in time, with patience and goodwill, contending constitutional rights and conflicting personal values can be brought into mutually respectful accommodation."

Wednesday night's audience included Sen. Mike Lee, R-Utah; Bishop John C. Wester, the Catholic bishop of Salt Lake City; three of Elder Oaks' colleagues from the Quorum of the Twelve Apostles — Elders Jeffrey R. Holland, D. Todd Christofferson and Quentin L. Cook; and Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit.