SACRAMENTO, California — Believers and non-believers should seek fairness for all instead of total victory when laws and religious principles conflict, said Elder Dallin H. Oaks of the LDS Church's Quorum of the Twelve Apostles on Tuesday.
In a newsmaking speech to judges and clergy in Sacramento, California, that included general criticism of the culture wars and a narrow critique of Kim Davis, the county clerk who defied a court order to issue marriage licenses to same-sex couples in Kentucky, Elder Oaks provided limited praise for the U.S. Supreme Court ruling that legalized same-sex marriage nationwide and statements by President Obama supporting free speech and respect for religious speech.
At one point, he noted that “neither the government nor its citizens should tolerate veto of law (either its text or its operation) by officials not formally authorized to do so,” saying that principle applies to both a county clerk acting on religious grounds as well as an attorney general or governor refusing to defend a law on secular grounds.
The bulk of his remarks centered on a list of principles, some general and some specifically directed at either believers or non-believers, designed to help all sides resolve differences on church-and-state issues "without anger and with mutual understanding and accommodation."
He said his thesis was that all sides want peace and to have it they must learn mutual respect.
"There should be no adversariness between believers and non-believers, and there should be no belligerence between religion and government," said Elder Oaks, who has served for 31 years as an apostle of The Church of Jesus Christ of Latter-day Saints. "These two realms should have a mutually supportive relationship."
He titled his speech "The Boundary Between Church and State" and delivered it at the second annual Sacramento Court/Clergy Conference.
"Governments and their laws can provide the essential protections for believers and religious organizations and their activities," he said. "Believers and religious organizations should recognize this, and refrain from labeling governments and laws and officials as if they were inevitable enemies.
"On the other hand, those skeptical of or hostile to believers and their organizations should recognize the reality — borne out by experience — that religious principles and teachings and their organizations are here to stay and can help create the conditions in which public laws and government institutions and their citizens can flourish."
Elder Oaks rejected the idea of a "wall of separation between church and state" but affirmed the need for a boundary. He said he would replace the "unfortunate" old metaphor with a new one, a collaborative "curtain that defines boundaries but is not a barrier to the passage of light and love and mutual support from one side to another."
In recent years, a broad spectrum of LDS Church leaders from the First Presidency, Quorum of the Twelve, Presidency of the Seventy, Presiding Bishopric and general auxiliaries have called for civility and mutual understanding in dialogue about issues ranging from nondiscrimination to immigration to religious freedom.
Elder Oaks suggested three general principles for a "center path" he invited listeners to walk with him:
- Parties with different views on the relationship between church and state should advocate and act with civility
- On the big issues that divide adversaries on those issues, both sides should seek a balance, not a total victory
- It will help if we are not led or unduly influenced by the extreme voices that are heard from contending positions
As an example of the second principle, Elder Oaks referred to the new Utah law that ensures fair access to housing and employment for lesbian, gay, bisexual and transgender people while safeguarding religious freedom.
"In a head-on conflict over individual free exercise (of religion) and enforced non-discrimination in housing and employment," Elder Oaks said, "the Utah Legislature crafted a compromise position under the banner of 'fairness for all.' It gave neither position all that it sought, but granted both positions benefits that probably could not have been obtained without the kind of balancing that is possible in the law-making branch but not the judiciary."
He said the U.S. Supreme Court "bowed toward" the third principle in Obergefell, the decision that established a federal constitutional right to same-sex marriage. The majority decision, he said, rejected several extreme proposals for the basis of the decision and "acknowledged the reasonableness of the religious and philosophical premises of those who argue that marriage should be limited to a man and a woman, and assured that the First Amendment will protect religious organizations and persons who continue to teach them."
Elder Oaks then provided some suggestions for fellow believers and others for those with non-religious values.
Believers, he said, should seek to harmonize divine and civil laws. They should not assert the free exercise of religion to override every law and government action that could possibly be interpreted to infringe on institutional or personal religious freedom.
They also will be more persuasive if they explain their positions in terms understandable to those who don't share their beliefs.
"None," he said, "should adopt an 'us vs. them' mentality."
Believers also should submit to a law once it is sustained by the highest available authority, he said.
"All government officers should exercise their civil authority according to the principles and within the limits of civil government," he added before commenting on Kim Davis:
"A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle."
Far worse, he said, are governors or attorneys general who refuse to enforce or defend a law they oppose on personal secular or religious grounds, a reference that could include the Obama administration's past refusal to defend DOMA and some governors' refusal to defend their state laws and constitutions in the courts when those marriage provisions were challenged.
Administrators can delegate duties and judges can disqualify themselves when consciences is an issue, he said, adding that "government operations can accommodate the conscience of individual officials, but neither the government nor its citizens should tolerate veto of law (either its text or its operation) by officials not formally authorized to do so."
He gave advice to people with differing or non-religious values:
- Please respect the laws that provide unique protections for believers and religious institutions, and please accept the fact that this grants religion an honorable place in our public life
- Extreme adversaries of churches should refrain from violating or ignoring the fundamental freedoms of speech and assembly that are also enjoyed by religious persons or institutions
He said he was "heartened" by President Obama’s recent support for free speech on the campus and for broader respect for religion in speech.
He repudiated the "culture wars," which he defined as the collision of two values, freedom from discrimination and the free exercise of religion. Those conflicts undermine collaboration.
"Differences on precious fundamentals are with us forever," he said. "We must not let them disable our democracy or cripple our society. This does not anticipate that we will deny or abandon our differences, but that we will learn to live with those laws, institutions and persons who do not share them.
"We may have cultural differences, but we should not have 'culture wars.' ”
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