700. Coming Challenges to Religious Liberty: What’s on the Horizon?
This is an extremely important article that we hope you will share broadly.
This article is based on Alexander Dusku’s talk of the same title from BYU Education Week.
If there was an underlying theme to this year’s BYU Education Week—appearing again and again in talks–it was about threats to our religious freedom with LDS Public Affairs sponsoring 18 presentations on the subject.
It was as if we didn’t get it the first time, we’d have multiple opportunities to be awakened—and alarmed. “Do you get it?” “Do you get it now?” This is not an area we can be in the least bit casual or think that it is somebody else’s problem or refuse to take the time to learn about.
Alexander Dushku, an attorney for Kirton & McConkie that represents the Church in most of its legal affairs, said that there is a planetary clash—like two large bodies smashing into each other– throughout all of western civilization between the religious and the secular cultures with the result that a smaller and smaller space is being left for religious freedom as people disregard it or are even hostile toward it.
He explained what the current viable threats are to our religious freedom as well as matters we sometimes worry about that are not likely to happen in any current time frame.In some areas we may be anxious without need. We will cover these later in the article.
We Have Taken it for Granted
Most of us in the United States assume our religious freedom is a given, guaranteed by the First Amendment to the Constitution. It’s something we’ve counted on, rarely considering it in any way threatened, but the picture is more complex than that.
The language of the first amendment about religion “Congress shall make no law respecting an establishment of religion, or abridging the free exercise thereof” is a broad social and legal principle, but it does not mean that religious freedom is absolute. Dushku gave an example. The Aztec priest who believes in child sacrifice will not be allowed to practice his religion in this area despite the First Amendment.
Since religious freedom is not an absolute guarantee, legislatures make laws and constitutional provisions are interpreted by the courts. Dushku said, “That can be the source of great joy for some and great frustration for others because it falls to the courts to figure out what the sweeping language in these constitutional provisions cover and what it does not cover. Even judges who are trying to do their very, very best will often come up with different interpretations.”
God doesn’t have a courthouse in the United States.
He said, “The Declaration of Independence said our rights are determined by God. “We are endowed by our Creator with certain inalienable rights.” But God doesn’t have a courthouse in the United States. You can’t show up and say, “I’d like God to be my judge” and go in and have your case adjudicated. You actually go before a man or a woman who is a judge. When you go to the legislature, you go before ordinary individuals, and when it is all said and done, they are the ones who determine the rights that are going to be enforced or are not being enforced.
Culture Heavily Influences the Law
“Culture heavily influences the law. It is what’s driving our legislature to do the things that they do. Judges spend a lot of time talking about how they are just objectively interpreting the law. In many cases that’s true, but in reality they bring themselves to that act of interpretation. They don’t just have an out-of-body experience while they are interpreting the law. What do they bring with themselves? They bring their cultural values. They bring their religious beliefs. They show up and they read the law based on the things they’ve experienced.”
As our society has become more and more secular, the judges and legislators reflect that culture and it becomes built into the law. The culture and values of religious people and secular people represent two very different approaches to life. They often represent vastly different perspectives.
Dusku said that the religious approach to life is built around this approach. The purpose of life is rooted in God’s truth and doing God’s will. The religious promote a respect for authority both of religion and religious institutions as well as leaders, parents and family structures. It tends to focus on attributes like duty, sacrifice and loyalty. They tend to have traditional beliefs and practices regarding marriage, family gender and sexuality with related social constraints.
“A secular culture,” Dushku said, “tends to be built around a different set of beliefs. They tend not to think about there being any higher authority than the individual or society. In other words morality arises out of the individual or out of social consensus. It doesn’t arise because of God coming down and telling people. They have a fair amount of suspicious toward traditional religion. They talk about religion being oppressive, especially religious institutions. They believe in personal and sexual autonomy, individual expression, liberation from traditional constraints, equality/nondiscrimination; They focus on individual dignity defined in secular terms and on personal identity. There is a fairly strong rejection of some traditional beliefs and practices regarding marriage, family, gender and sexuality with related social consequences.
We are in a situation where the religious culture and our secular culture are now in deep tension.
“We are in a situation where the religious culture and our secular culture are now in deep tension. They are clashing very severely and in many different ways. This is a clash of fundamental values, of beliefs about how life ought to be lived and what counts most and what counts less. It is not always a clash between good people and bad people. It is most often a clash between good people who hold very, very different values.
“This is generating tension with respect to the free exercise of religion and it’s going to get worse. That is simply the reality. You all know what I’m talking about. You go to a movie. The values that underlie the movie almost all the time tend to be fairly secular values. Couldn’t they have the good-looking man and the beautiful woman who are in a relationship be married? Would it really affect the story seven out of ten times if they were already married? They just choose not to do that. That’s a choice that’s intentional. They’ve just chosen not to emphasize the traditional cultural value of marriage.”
Legislatures and Courts are Enforcing the Secular
As a result, notes Dushku, “Legislatures and courts are increasingly enforcing secular cultural values at the expense of religiously-oriented values. We saw this, for example, in the same-sex marriage case that came to the U.S. Supreme Court. If you read the Constitution from start to finish, there is, of course, nothing in there that talks about marriage. There’s a reason for that. The states from the beginning were always the entities that dealt with marriage. The Federal Constitution never purported that it had anything to do with marriage.
“Outside of the racial context, 40 years ago you couldn’t have found a single jurist who would have said that the Constitution ever protects the right to same-sex marriage. What happened?
What happened was a change in the values and all of a sudden what was absolutely impossible became completely self-evident
“”What happened was a revolution in the culture. What happened was a change in the values and all of a sudden what was absolutely impossible became completely self-evident and obvious to five members of the court. Culture drives law.
“As this happens, the space for the exercise of religious beliefs is shrinking. It is getting smaller because the cultural and legal values that govern our society are beginning to carve off areas, beginning to shrink the areas where people can fully and completely exercise their religious beliefs.
“In Europe this has already happened. Churches function primarily as museums. The open expression of religion is very limited.”
So, What Don’t We Have to Worry about—at Least for Now?
The following things are not going to happen, according to Dushku—at least not in the near future.
“Are we facing the threat that the Church is going to be forced to host same-sex marriages in its temples? The answer to that question is ‘no.’ The law as it currently stands, including a 9-0 Supreme Court decision that doesn’t touch on this issue but on an issue that’s very closely related, suggested that this isn’t an issue…In terms of what you ought to be worried about, this isn’t one.”
“Will church bishops be forced to perform same-sex marriages? Same answer. Fines or law suits for teaching doctrines like The Family Proclamation in church? It’s not going to happen. Government interference with church membership or priesthood standards –very strong legal principles that are currently supported by all the factions that are on the Supreme Court. That strongly protect that.
“Denial to vote based on your religious beliefs? Nobody is talking about that. Is it possible we could have further massive cultural shifts that would call these things into question? Yes it is possible, but in interacting with some of the cutting edge forces on the secular cultural side, none of them is saying anything that would suggest these things are threatened.
“We don’t live in a tyranny. Things are getting more difficult as the culture shifts, but it’s not time to put that food storage into your Suburban and drive up into the hills, take your ammunition and your bunker. This is not the situation we’re in. We’re still in a free country and we ought to be grateful for that.”
Things to Worry about – The Church as an Organization
None of this is to say that we are not facing threats and challenges
“None of this is to say that we are not facing threats and challenges,” said Dushku. Here are some of the practical ones he lists.
Religious Employment Standards: One of the threats is religious employment standards. If you own a business you know that the government regulates employment and there are some good reasons for that, such as you can’t discriminate against someone for racial reasons. However, religious organizations need to be able to pull their own people together who share their beliefs so they can carry out their religious missions. To work at the Church office building, for example, there is a temple recommend standard. This standard is very important as the several thousand people who work there must have the Spirit as they attempt to carry out the direction of the 15 prophets, seers, and revelators.
Access to Religious Properties: There are laws that limit the extent you can tell someone to get off of property that is open to the public. Does the church have a lot of property that is generally open to the public? Yes. What about temple square? It lets in almost anybody. There’s pressure to change the laws so that a religious organization could not have full control over its property.
Religiously Affiliated Universities: The threat here is about accreditation, federal loans for students, research grants and contracts and more. Dushku said, “BYU faces an ongoing threat that at some point it may lose its accreditation. I am not saying BYU will lose its accreditation, but that there are forces that would like to do that. Why? Because of its religiously-based standards which they denounce as purely discriminatory and they shouldn’t exist—and if BYU is going to exist then it should not be accredited. Is it going to happen tomorrow? No. Is that going to happen in the next few years? I don’t think so, but that’s a battle.
“The same kinds of things could be attached to student aid, so in California, for example, there was a State Bill 1146, that almost passed the legislature that would deny student aid to religious colleges that had a BYU-type honor code…There was an effort to deny them CAL grants that are like PEL grants to any student who attended one of these religious schools. That would effectively put these schools out of business. It was an effort to severely punish these schools and force them to change their religious nature.
“That was not defeated. It was merely taken off the table to talk about until the next session.
“If you are a university and you can’t receive federal government money for research contracts, you are not going to be able to do cutting-edge research. You are not going to be able to get the great professors and you’ll end up being just a liberal arts college. You won’t have science, technology, engineering and math degrees. That’s a very serious threat. “
Dushku said, “If they can take your religious school away, then they prevent you from creating an environment where tens of thousands of young men and women can come together in a faith-affirming experience as they get a great education and coming together in marriages and relationships. If they can do that to you, they severely weaken your ability to hang on to your youth and influence society.
Counseling by Religious Groups such as LDS Social Services. “The threat is that if the counseling does not comport with secular values with respect to marriage, family, gender, and sexuality, they will lose their licenses.
Tax-exempt Status for Churches: “This was previously thought to be completely off the table, but in the middle of the oral argument regarding same-sex marriage before the Supreme Court, the Solicitor General of the United States which is the highest officer of the US government who presents argument in the Supreme Court, an extremely important position, was asked about tax-exempt status of churches that opposed same-sex marriage, and instead of saying, ‘That’s absurd. Not a problem,’ he said, ‘It’s certainly going to be an issue. I don’t deny that.’”
The Marginalization of Institutional Religious Voices: “That’s the idea the churches and other religious institutions are just not going to be listened to. They are going to be told to shut up and keep out of the public policy process. Don’t comment on matters of morality and so forth. Then there’s the little petty acts of retaliation. This is where they get you by a thousand little cuts. Where they just don’t like you because of religion and they hold up your building permit and they don’t grant you your 501c3 letter or they don’t grant you this or that benefit that everybody else gets.”
Things to Worry about – The Individual
As far as the individual level experiencing religious freedom, here are the immediate concerns, according to Dushku.
The Loss of Freedom to Express Your Views: On college campuses, people with traditional religious values find it very difficult to express their views without being ostracized, without being told to shut up and be quiet, without being told that they are creating a hostile environment for other people. That notion is moving now into employment.
Parental Rights in Public Education: “The concern here is that public education has now undertaken to comprehensively educate our children regarding human sexuality and that, or course, brings in all of the clashes of the culture war. Are parents going to be allowed to pull their kids out and teach them their values or will they have to remain in school during these sex-education courses?”
The Right to Participate in a Profession without Sacrificing Your Religious Beliefs:
“Sometimes you have to sacrifice your religious beliefs or sometimes you just have to be quiet about them—in the counseling profession, the legal profession the medical profession. If you are an obstetrician will you be required to perform abortions? Thus far, the answer has been no, although in California, your clinic must, at least, perform them.”
“Members ought to have the ability to work in their professions without abandoning their beliefs. We can’t have the situation where no believing Mormons are allowed. The Jews faced that situation in Europe. You could be a Jew and for the most part violence would not be perpetrated against you, but there were whole areas that you could not participate in. You were banned because you were Jewish. We can’t be like that. We don’t want a “No Mormons need apply.” Sign. Fortunately in these areas, we still have significant rights, but we will need to be vigilant.”
Lack of Religious Accommodation in the Workplace: “Private employers are becoming more and more hostile toward religion. What they are doing is enforcing secular values within their employment space. For example, they may let people off to do all kinds of things, but many employers will not let people off so they can go to church on their Sabbath.”
The Right to Work in Government without Sacrificing Your Religious Beliefs: “This is also under pressure.”
The Right to Run Your Own Business or Your Profession in Accordance with Religious Values: “Increasingly there is the view if you are open for business with the public, purely public values have to guide and direct your business decisions and the way you interact with the public. There’s some sense to that but if taken too far it can be too dangerous.”
A Full-Spectrum Threat
Obviously, these threats are across the spectrum. In order to protect religious freedom, we have to be clear about what it is both on an individual and group level.
Dushku said, “Freedom of religion is not just about the right to think something or the right to say something or the right to worship. People have been trying to limit the notion of freedom of religion to just the freedom to worship. It’s more than that. We have to be able to exercise our religion in every aspect of our lives.”
Dushku concluded, “We are going to have to take a stand for those things that are most important. The call to defend religious freedom is real. It is coming from prophets, seers, and revelators. We don’’t need to defend it in fear, and certainly not with hysteria, but the way Christ would defend religious freedom–with steadiness, firmness, with an eye to what is most vital and with love toward all.”
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