The LDS Church leader's brief statement that Davis was wrong drew direct criticism from her attorney, but one expert said his speech was a "significant development" in the church's ongoing effort to steer a carefully considered course unique among faiths working together for the common causes of traditional marriage, family and religious liberty.
"I think this is a big deal," said Jonathan Rauch, a senior fellow at the Brookings Institutiton in Washington, D.C. "I think Elder Oaks' statement is a significant development in the unfolding drama over religious liberty and gay rights."
On one extreme, demanding religious liberty rights, is Davis and her attorney, Mathew Staver, who began to advocate for disobedience of the U.S. Supreme Court's legalization of same-sex marriage three months before the ruling.
Davis and Staver are joined by many evangelical Christians, Catholics and other religious conservatives, not to mention a group of 60 legal scholars who earlier this month called for "constitutional resistance" to the court's ruling.
On the other end of the spectrum are extremist gay advocacy groups that demand affirmation of all gay rights at the expense of religious liberty.
Fairness for all
Staver told the Associated Press this week that of all faiths, The Church of Jesus Christ of Latter-day Saints should understand religious conscientious objection, given its history. Indeed, one governor ordered the state-sanctioned extermination of Mormons.
A church spokesman responded Wednesday, telling the Deseret News a lesson of that history is that all-or-nothing approaches tend to be harmful.
"Elder Oaks was explicit in his speech about the need to balance both religious freedom and nondiscrimination — what the church has termed a 'fairness for all' approach," church spokesman Eric Hawkins said. "His remarks need to be considered in their entirety.
"Davis's attorney is correct — no religious group in America has a better understanding of the need to protect religious freedom than we do. With that history we also recognize that it's imperative that we work with others to develop a society where there is mutual respect for opposing viewpoints. A 'winner-take-all' approach serves neither side well."
Rauch said Elder Oaks' speech is a sign that LDS Church leadership views the strategy of massive resistance proposed by many religious conservatives as a dead end that will damage the cause of religious liberty, not help it.
"LDS leaders are alarmed about what they see as the erosion of religious liberty, but they've also made the correct judgment that the proper way to deal with that is to create consensus in a positive way rather than an extreme way," Rauch said. "What the church is doing is creating something other than an all-out, mutually losing fight to the bitter end" between secularists who say there is no right of religious conscience and religious conservatives who say religious liberty trumps all.
"Neither extreme is right," Rauch said. "The Constitution carves out special status for religion and it also has a 14th Amendment that provides equal protection."
The LDS Church has built increasingly warm relationships with other faiths over the past 20 years as it has backed traditional marriage, families and religious liberty.
Some of those relationships, like that with the Catholic Church, which invited Mormon leaders to a Vatican conference on the family last November and to the World Meeting of Families last month, would have appeared preposterous in the past, Mormon scholars say.
The LDS Church took the first step on what Elder Oaks on Tuesday called a "center path" back in 2009, when it backed a nondiscrimination ordinance in Salt Lake City that provided housing and employment protections for lesbian, gay, bisexual and transgender people.
Then in January this year, Elder Oaks, two other members of the Quorum of the Twelve Apostles and a leader in the church's Young Women general presidency made national news when they plainly reiterated the church’s support for laws that ensure fair access to housing and employment for LGBT people while safeguarding religious freedom.
Both the religious right and gay advocacy groups balked. But in March, the Utah Legislature passed a nondiscrimination law embraced by gay advocates and studied by other legislatures.
"I see Elder Oaks' statement as an effort to build on the (Utah compromise), which showed that if you can line up all the planets you can get real things done," Rauch said.
Rauch called Elder Oaks' speech the logical extension of the church's actions this year.
"What Dallin Oaks' speech signifies is that the church is feeling encouraged that it's on the right path, one consistent with its values, and 'we're sticking with it,'" Rauch said. "This is one more step that will be hard to walk back. It's always possible events will change and the church will change its position, but this is a big step forward on the same road."
Staver, the attorney for Davis, told the Deseret News on Wednesday that he is "very concerned" by Elder Oaks' speech, calling it a significant deviation from LDS support of California's Prop 8 in 2008.
"I understand wanting to find a middle ground," Staver said, "but at the end of the day I don't think you can find a middle ground. Those who support same-sex marriage, they don't want any middle ground. They don't want any dissent, and not only do they not want any dissent, they want everyone to affirm gay marriage."
On Tuesday, the same day Elder Oaks spoke to a conference of attorneys, judges and clergy in Sacramento, California, Staver and a co-author published an article supporting the 60 scholars who advocate resistance to the Supreme Court ruling.
In March, Staver declared a Supreme Court decision for same-sex marriage might require civil disobedience. That's a critical point of disagreement between Staver, former dean of the law school at Liberty University, and Elder Oaks, a former legal scholar on religious liberty at the University of Chicago law school and a former justice of the Utah Supreme Court.
Staver says Davis can defy the Supreme Court as a conscientious objector on religious grounds. Rauch said Elder Oaks upheld civil disobedience by a citizen in the tradition of Rosa Parks, but drew the line at defiance of the law by a public official sworn to uphold it when it affects other people.
"Those are totally different, and he's highlighted that distinction," Rauch said. "He's not against individual conscience. He's saying this is a horse of a different stripe. And he's right."
The Utah compromise that became law this year allows a county clerk to refuse to issue same-sex marriage licenses as long as there is other staff within the office to provide that service. Staver said he is aware the LDS Church has not changed its position on same-sex marriage but expressed concern Elder Oaks signaled a difference in thought on religious freedom.
"This is a cultural clash of unprecedented proportions," he said.
He also predicted more Kim Davises. "You're going to find more and more people willing to pay the consequences because they aren't willing to violate their consciences."
Staver said resistance can reverse the Supreme Court decision.
"I think it can be (reversed) when people begin to realize they didn't sign up for this coercive agenda."
Rauch said Davis, Staver and the scholars cannot win an all-or-nothing strategy.
"If I were those 60 scholars, I would look at the speech by Elder Oaks and do some serious rethinking about the road I'm on," Rauch said.
"Their reading is, 'I swear to uphold the Constitution and the laws of my state unless I disagree with them.' The chance of the American people buying into that view is zero. It's not even .001. You uphold the oath you've taken."
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