A brave new definition of “free speech”

All of the levity over Mormon being the new black is a bit of a sideshow — obscuring the meat of what Elder Oaks is proposing:

Those who seek to change the foundation of marriage should not be allowed to pretend that those who defend the ancient order are trampling on civil rights.

They shouldn’t be allowed to make that claim? And what do you (Oaks) think should be done to prevent them from being “allowed” to exercise their free speech on this point? Some sort of legal limitation on your critics’ rights to use their free speech to criticize you?

No joke or exaggeration, it sounds like that’s what he’s proposing:

But unless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.

Am I misreading this?

Otherwise, what “greater protection” for the “religious actor” do you think he’s requesting? Any specific examples?

(In order to keep the question open to reasonable discussion with believers, let’s try to keep criticism even of the CoJCoL-dS itself civil and constructive on this thread.)

chanson

C. L. Hanson is the friendly American ExMormon atheist mom living in Switzerland! See "letters from a broad" and the novel ExMormon for further adventures!!

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79 Responses

  1. TT says:

    Well, you’re overreading it. I am no defender of the speech, and I think that he has a convoluted argument about why opposing gay marriage is an issue of freedom of speech or freedom of religion, but I also don’t think he should be twisted to say what he didn’t say.

    I think that the idea behind not being “allowed” is not about a legal restriction on free speech, especially since he emphasizes the importance of free speech. Rather, I think he is suggesting that this argument about civil rights not be taken for granted, but instead be open to debate.

    For the second quote, I think that he is suggesting in the context of that section that freedom of religion and free speech provide what he sees as a special protection of religious speech in the public square, and that religious arguments should not be excluded per se because they are religious. He is arguing about protecting religious speech, not protecting religious people from the speech of non-religious people. He later qualifies this claim about the value of religious speech by suggesting that “religious persons will often be most persuasive in political discourse by framing arguments and positions in ways that are respectful of those who do not share their religious beliefs and that contribute to the reasoned discussion and compromise that is essential in a pluralistic society.” He is making a distinction about religious speech as protected and religious speech as politically strategic. While he argues for extra protection of religious speech, he doesn’t seem to suggest that anyone else is under obligation to accept it, and that it is best framed in the civil discourse of a pluralistic society.

  2. mermaid says:

    What is this “special protection of religious free speech?” Why is it needed beyond anyone else’s free speech? Where does he get the documentation for this in the constitution. My understanding is that the first amendment protects us from a state religion, not gives religions special protections that other citizens do not have.

    I think you are reading this correctly. And it scares me.

  3. TT says:

    He makes the argument that freedom of speech and freedom of religion are two separate constitutional provisions, and that freedom of religion cannot be reduced to freedom of speech because it is a different freedom. Therefore, he argues, freedom of religious speech deserves greater protection. As I understand it, this is a pretty standard constitutional argument.

    To be clear, I am not sure what he sees as the threat to religious speech here, except perhaps the “intimidation” and singling out of individuals for targeted attacks. I agree that these kinds of attacks are inappropriate, but I am not sure that victims deserve some kind of special legal protection, or even what that protection would look like (civil suits for lost income against protesters???). To be clear, Oaks doesn’t say exactly what he means in terms of protection against past harms, but instead is interested in making sure that religious speech not be excluded from the public square. I think that he is attempting to make a claim that religious speech belongs in the public square because of this double protection, even though he qualifies this claim when he says that religious speech isn’t particularly effective in civil discourse.

  4. visitor says:

    I think you need to read the first statement you quote above as they understand they’re losing the civil rights issue. …which is to say, KEEP IT UP! Maybe one day we’ll even get equal civil rights of the female half of the population.

    And consider the second quote as he’s conceding that they need the advantage of special consideration to stay in the fight.

    They’re on the run. Which, I suppose, is why he’s putting the heat up under “we’re so persecuted” when logic and human decency don’t support his agenda. They’ve already all but lost the US loyalties. He’s worried now about all the LDS loyalties they’re losing over this.

  5. kuri says:

    I think TT is right and “allowed” means in the rhetorical sense, i.e., such arguments should not be “allowed” to go unanswered or to gain the force of law.

    mermaid,
    The First Amendment has two religion clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” So it both protects us from state religion and gives religion special protection.

  6. Elaine says:

    Oaks is saying just what it seems like he is saying there…that things said and done out of religious belief should be privileged above things said and done out of beliefs reached in other ways. Basically, the religious (and I suspect that he is really thinking Mormons and other Christians) should have more rights, and more protections of those rights, than those of us who are not believers.

    If I remember correctly, somewhere else in that talk, he said at least by implication of not overtly that freedom of religion does not include freedom from religion. So, he isn’t just trying to push gays and lesbians into second-class citizenship, but he is trying to do that to anyone who does not hold religious beliefs.

    And that is the real headline in this whole mess. Oaks, and by extension the Mormon church, since he was speaking in an official capacity at a church school, believes that the religious are more equal than the non-religious. It isn’t a shock, really, that he believes this. I am surprised that there has not been more outcry about that part of his talk.

  7. kuri says:

    TT,

    I think the “harm” that Oaks and the leaders of the church fear is real and will take several forms as gay marriage becomes normalized.

    First, in some countries, preaching against gay marriage, refusing to perform gay marriages, and discriminating against gay members may become illegal. Because of our constitutional guarantees of free speech and free religion, that’s extremely unlikely to happen in the US, but it’s a somewhat plausible scenario in some other countries.

    Second, while there will be no bans on preaching and so on, there will likely be some relatively minor legal consequences. For example, when BYU discriminates against gay students, it could lose all federal funding, including the right of its students to receive grants and loans. There were rumblings about that in the 1970s over blacks and the priesthood, and IIRC, Bob Jones University lost its funding for awhile over teh same issue.

    Third, while the church may not face severe legal consequences in the US, it will face social consequences. It will remain free to discriminate against gay people just as it did against black people. But just as happened before 1978, people will increasingly look at the church and think, “What a bunch of assholes.”

    So I think the church is taking a long-term view and trying to get out ahead of issues like those and begin countering them before they occur.

  8. kuri says:

    “And that is the real headline in this whole mess. Oaks, and by extension the Mormon church, since he was speaking in an official capacity at a church school, believes that the religious are more equal than the non-religious. It isnt a shock, really, that he believes this. I am surprised that there has not been more outcry about that part of his talk.”

    I think that’s commonplace, actually. Religions are legally and socially allowed to do all kinds of things — discriminate in various ways in hiring and so on — that ordinary businesses and individuals aren’t allowed to do.

  9. The idea that religious speech receives special protection above the protections already afforded by the separation of church and state doctrine is silly. It’s hard to believe a former law professor would honestly consider that, but that seems to be the case.

    If that ever comes to pass, what’s stopping us from forming single-issue religions to protect our speech?

  10. Madam Curie says:

    I don’t think that you misheard the talk, chanson, because as I said on my blog, this talk shouldn’t take a constitutional law professor or a lawyer to understand. He gave the talk AT BYU-I to BYU-I undergraduate students of various backgrounds. So I feel no harm in taking his words at face value, since that is how they will be taken by the MFHD students at BYU-I.

    Now, I do think that he fully intended for this talk to be parsed by the constitutional lawyers and what not, and that is why he clearly indicated that he was speaking to a “diverse audience”, and why his talk was so heavy on the constitutional law arguments. But that doesn’t mean that his words shouldn’t be “allowed” to be taken at face value, especially considering who is “target” audience was.

  11. Madam Curie says:

    TT –

    For the second quote, I think that he is suggesting in the context of that section that freedom of religion and free speech provide what he sees as a special protection of religious speech in the public square, and that religious arguments should not be excluded per se because they are religious. He is arguing about protecting religious speech, not protecting religious people from the speech of non-religious people.

    I disagree with this analysis. Elder Oaks clear stated:

    [U]nless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action.

    He clearly was indicating that he believes the religious individually has more rights (i.e., “protections”) than other non-religious actors.

  12. Madam Curie says:

    Furthermore, he proves that this is the case (that religious individuals should have more protection than non-religious individuals) when he talks about how “freedom of religion doesn’t mean freedom from religion,” and indicates that atheists should not be allowed to have those same “protections” as religious people.

    I’m still waiting for a good explanation of what those “protections” are – perhaps as you stated, he expects the protection to argue unopposed???

  13. Elaine says:

    Jonathan…What Oaks is trying to do, I think, is to say, loud enough and long enough, that religious speech should be more protected than other speech, so that that will become the accepted constitutional doctrine. That’s why he says this: “Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action”, in this way.

    This is fairly common tactic on the right, especially on the religious right…they think that if they keep repeating something and stamping their foot long enough and hard enough, that will turn their illusions/delusions into reality.

  14. kuri says:

    “He clearly was indicating that he believes the religious individually has more rights (i.e., protections) than other non-religious actors.”

    Not to belabor the point, but that’s true. They do have more protections. For example, in many circumstances, they have the right to discriminate against groups of people based on their own religious beliefs.

    “Im still waiting for a good explanation of what those protections are perhaps as you stated, he expects the protection to argue unopposed?”

    That’s one of the things he wishes for, I’m sure, but another thing he’s aiming for is a free pass related to government rules. For example, if the government prohibits discrimination against gay people in order to participate in a particular program (say, federal loans and grants for BYU students), he wants a “religious exemption” from those rules.

  15. Madam Curie says:

    Kuri –

    Thats one of the things he wishes for, Im sure, but another thing hes aiming for is a free pass related to government rules. For example, if the government prohibits discrimination against gay people in order to participate in a particular program (say, federal loans and grants for BYU students), he wants a religious exemption from those rules.

    Interesting. Didn’t work out so well for them with polygamy, tho’.

  16. TT says:

    Jonathan Blake:
    “The idea that religious speech receives special protection above the protections already afforded by the separation of church and state doctrine is silly.”

    This sentence makes no sense. Religious speech doesn’t need special protection because of the separation between church and state? Where did you get that from?

    Madam Curie,
    “He clearly was indicating that he believes the religious individually has more rights (i.e., protections) than other non-religious actors.”

    Right. He says that the extra right that a religious person is the free-exercise of religion. Of course, the non-religious person has the same right, even if they choose not to use it. This is part of his larger argument that the speech of a religious actor deserves special protection. I don’t think there is anything wrong with the logic of this argument. How it applies to this case of Mormons opposing SSM, I am not sure. I have suggested that what he sees as the issue is the “intimidation” of individual Mormons who supported Prop 8.
    I don’t know enough about free speech cases to know whether intimidation is a technical term or not that constitutes a restriction on speech. Does anyone else know?

    Oaks does not say the quote that you attribute to him regarding “freedom from religion.” He states this as the “atheists” point of view, but doesn’t say that it is wrong. Rather, he states that such a view has the potential harm of limiting the free exercise of religion and free speech of religious people. Rather, he acknowleges that this has limits in the section on the “religious test” as well as when he says: “the right of some to act upon their religious principles must be qualified by the governments responsibility to protect the health and safety of all.”

    “Im still waiting for a good explanation of what those protections are perhaps as you stated, he expects the protection to argue unopposed?”

    Really? You don’t have any idea what sorts of protections that religious people have in the free-exercise of religion? Take, for instance, religious pacificts’ exemption from the military, or Roman Catholics for restricting employment based on sex, or others based on sexual orientation, or the protection of observant Jews, Christians, Muslims and others for not being forced to work on religious holidays, etc.

  17. Madam Curie says:

    Really? You dont have any idea what sorts of protections that religious people have in the free-exercise of religion? Take, for instance, religious pacificts exemption from the military, or Roman Catholics for restricting employment based on sex, or others based on sexual orientation, or the protection of observant Jews, Christians, Muslims and others for not being forced to work on religious holidays, etc.

    Ah, yes, I see now. Thanks for that clarification. I think because I was trying to see this through the lens of Prop 8 and SSM, and the “persecution” of the Mormons post-Prop 8, I was getting confused.

  18. philomytha says:

    I think part of Oaks’ argument is that people should be able to do things for religious reasons that would not otherwise be allowed in our society.

    That’s always going to be a tricky balancing act… Hats are not allowed in school, but head coverings for Muslim girls are okay? How about animal sacrifice? Heck, what about circumcision (some would consider that ritual mutilation of child)? Where do you draw the line?

    If religious actions weren’t offensive to somebody, they wouldn’t need special protection.

  19. Steven B says:

    Similarly, Oaks indicates that LDS religious freedom should trump LGBT religious freedom, as the Yogyakarta Principle that he worries about is the freedom of thought, conscience and religion for LGBT people. I discuss this at my blog.

  20. leisurelyviking says:

    Religions are also allowed certain exemptions from law when it comes to free exercise of their beliefs, such as serving small amounts of wine with communion to children, allowing certain drugs to be used in religious ceremonies, etc. This has been the subject of many court cases attempting to define the limits of free exercise of belief.

  21. Craig says:

    Oaks is stumbling into dangerous waters with his religious vs. gay framing of the debate – mostly because it’s a false dichotomy. There are quite a few religions which strongly favour gay equality, gay marriage, total equality for all. His arguments therefore lose their potency because the only grounds he has to argue against gay rights are religious, and why should his specific, Mormon religious beliefs be able to trump, in secular society, the religious beliefs of the UU of Church of Christ, or liberal Quakers, or Episcopalians, etc?

    Because the constitutional issue of separation of church and state – the state cannot favour one religion over another, even if we were to allow it to favour religion over non-religion (which we don’t allow, or are trying not to at least) – it still could not constitutionally or legal allow conservative religions to overrule liberal religions on this (or any other) issue.

    I can’t believe he’s stupid enough to not have realised this (though perhaps he is), so I have to assume he knows how fundamentally flawed his entire argument is, and he’s only using it to cynically manipulate those who won’t question his words or fault him for his illogic. Oaks, Hafen, et al. are just giving the faithful ways to not feel guilty about being homophobes, and are making them perform their dirty work by filling their heads with lies and half-truths and faulty logic.

    And I believe Chanson is right that Oaks believes (or at least says he does, which is the same thing to me) that gays shouldn’t be allowed to protest. The church clearly believes they have some imaginary right to be immune to ALL criticism, and think that they also have a right to pay for votes on what minorities get which rights. This mentality stems, I think, from the idea Mormons are brought up with that they’re special, better, and more righteous than EVERYONE ELSE EVERYWHERE, EVER. They have the “ONE TRUE TRUTH” from sweet baby jesus, and that gives them the right to lord it over everyone else. They simply don’t get why society can’t function when people act/think like that, and why they should be subject to the same secular laws as all the heathens. They just don’t get that their apostles aren’t in charge of the country, that their imaginary space-jesus isn’t really running things on earth from his perch on Kolob, and that they’re on the very, very wrong side of this issue, as so often in the past.

  22. TT says:

    I am not sure that I agree with Craig’s mind-reading abilities or his desire to ignore evidence which contradicts his assessment of what Oaks actually said, but I do agree that the assertion that there is a battle between gays and atheists versus “religionists” is a remarkably bad argument.

  23. Hellmut says:

    Religious freedom does not privilege some citizens over others. It privileges the individual’s conscience over the state and protects citizens from each other.

    Religious freedom means that each one of us may adhere to the religion of our choice. The state surrenders its interest to impose a unitary faith over its subjects.

    Religious freedom does not mean that religion may compromise the sovereignty of the state. A Catholic Briton still owes fealty to the British monarch even though the latter is also the head of the Church of England.

    Regardless of one’s faith, the state continues to demand the obedience of its subjects. The default position is that the regulation of behavior applies to every subject.

    Occasionally, the pressure of conscience is so strong that it is in the interest of the state to grant exemptions. For example, the United States recognizes the pacifism of Quakers and others with the conscientious objector exemption to the draft.

    In no case, however, can the state grant religious organization the permission to hurt other citizens in the public square.

    That is an implication of religious freedom itself. If one religion were allowed to discriminate against non-believers, there would be no religious freedom.

  24. chanson says:

    folks — sorry to have started such a provocative topic and then wandered away for nearly 24 hours. My parents are visiting. But thanks for the fantastic discussion!

    First off, I recognize that some religious actions (worship services in particular) do have special protection under the Constitution. And that this special right can often trump other laws (such as in leisurely viking’s example of drugs).

    Additionally, different types of speech can have different levels of protection under the first amendment: specifically, Supreme Court precedent holds that political speech has greater protection than advertising (spam).

    The sticky part comes in when we’re talking about ordinary, daily actions that have effects in the public sphere. To what degree can you get special rights, privileges, and protections for your public (not-specifically-worship-service) actions by claiming religion as a motivation?

    It’s very clear that this is what Oaks is talking about, and it’s significant that he says that the greater protection goes to the “religious actor” not to the “religious action“. Oaks is claiming that the Constitution grants him greater protections than others — whether it’s to go give a sermon or go organize a political rally — as long as he dons his religious mantle to do it.

    Now, the fact that Oaks’s claim is not far from reality is what makes it so disturbing. Precisely which actions get protection when performed with a religious motivation is quite a difficult and hotly contested question (as seen from this thread), and doesn’t have a simple answer. His simplistic suggestion (all of them!) is a pretty big claim to be pinning on the strength of a “surely”.

    TT’s example of military exemption is a good case in point. If I’m not mistaken, this question made it through the courts and it was found that one can claim conscientious objector status without having a religious motivation, and the reasoning was to avoid giving preference to one religion over another — and specifically to avoid giving privileges based on belief that non-believers don’t have access to. (Correct me if I’m wrong on this — I may be confusing the US and France, since my husband is an atheist and has conscientious objector status in France).

    Re: whether I’m “overreading” this. I’d say yes and no. He seems to be hinting about restrictions on some people’s free speech, and I think that hint should be taken seriously. In reality, it’s not that hard to convince a majority to take rights away from a minority. And, while the Bill of Rights does a good job of protecting a lot of (occasionally unpopular) rights, it’s not fool-proof, as we’ve seen with the “Patriot Act.”

    That said, I don’t think his intention is to seriously argue for restricting others’ free speech. I think he’s just trying to whip up a persecution sentiment over the injustice of it all: The law should give our political speech special privileges over the speech of the gay — but doesn’t! So unfair! 🙁

    I think TT is right and allowed means in the rhetorical sense, i.e., such arguments should not be allowed to go unanswered or to gain the force of law.

    I thought about this interpretation as I was writing the initial post. The way I see it, he meant one of three things:

    1. Their speech shouldn’t be allowed legally (which is what I’m discussing here).

    2. Their speech shouldn’t be allowed to stand without retaliation — and one could argue that by pinning that accusation on his opponents, he’s setting up a justification for it. But I’m going to give him the benefit of the doubt and not go there.

    3. Their speech shouldn’t be allowed to go unanswered, but rather good people should stand up and tell them how wrong they are!

    That’s a reasonable interpretation, albeit somewhat ironic. That would mean he’s encouraging his people to do exactly what his opponents are doing, and specifically he’s encouraging them to do exactly what he wrote this whole whiny speech to complain about.

    So I wish he’d clarified this point so that we’d know what he’s actually suggesting. That way we’d have the opportunity to have a real discussion of the merits of his suggestion rather than having to play a guessing game about what he meant.

  25. This sentence makes no sense. Religious speech doesnt need special protection because of the separation between church and state? Where did you get that from?

    What special protections do you suggest that religious speech needs beyond what non-religious speech has and beyond what it gets from separation of church and state?

  26. Steve M. says:

    I’ve only glanced over the comments, so I apologize if I’m repeating a point that’s already been said. I think we need to be clear about which First Amendment right Oaks is referring to in each quotation. If the first quotation is referring to the First Amendment at all, it is referring to Freedom of Speech. (I personally believe that Oaks’ word choice was poor, but that his intended meaning was that Mormons should not “allow” gay rights proponents’ civil rights claims to go unanswered.)

    The second quotation refers not to Freedom of Speech, but to the Free Exercise Clause. Oaks’ point, as I read it, is that because religious practice is singled out by the First Amendment, it is impliedly entitled to stronger protection than non-religiously motivated conduct (as opposed to speech).

    As I recall, the quotations do not appear in close proximity in Oaks’ talk. I believe the second quotation precedes the first. Therefore, I’m not sure that the second quotation should be read as an expansion or explanation of the first.

    To be clear, I’m not defending Oaks’ arguments. I’m simply trying to figure out what he’s saying.

  27. chanson says:

    Steve M. — Yes, those are some of the points we’re discussing.

    The trouble is that he’s being incredibly vague, so it’s not clear precisely what special protections he’s claiming for which religiously-motivated actions. It looks like he’s creating a blurry smudge that starts from actual constitutional protections and extends into claiming some hotly-disputed territory.

    (See my comment #24 for clarification of what I meant by this post.)

  28. Elaine says:

    chanson wrote:

    “That said, I dont think his intention is to seriously argue for restricting others free speech.”

    I have to say that I don’t quite agree with this. I think Oaks was arguing that the free speech of the non-religious should be restricted.

    In the same way that the Mormon church would like to (and does, by social pressure) keep those within the church from expressing dissenting viewpoints (all those folks within the church who have been told, well it’s okay if you don’t agree with us, but you’ll be disfellowshiped or excommunicated if you actually talk about it to members or others, or write about it in a public forum), there are a lot of people, both Mormon and of other flavors of Christianity who would be very happy if agnostics, atheists and those of faiths other than Christianity (or what they accept as Christianity) were not allowed to express their disagreements and their critiques of religion in general and of Christianity in particular.

    I think Oaks was arguing that this was the intent of the framers of the Bill of Rights, and the way it should be. I vociferously do not agree with him, and I think that to the extent that this happens in the United States, it is in violation of constitutional principles. His argument is yet another example of many I’ve seen in the past few years of the far right to a) try to change definitions in order to justify their positions and b) practice the principle I mentioned in an earlier post, that if they say something loudly enough and long enough, and stamp their feet enough, they will make it so through sheer force of will.

  29. chanson says:

    Elaine — It’s very possible. Free speech is not something to be taken for granted, but requires constant vigilance.

    Consider the case of Simon Singh, who is currently facing libel charges for stating that chiropractic claims of curing disease are “bogus”. Since he is merely saying that some chiropractic claims are not backed by evidence, he’s actually facing a legal battle for saying something that is true.

    Now one can point out that free speech has traditionally been less protected in the UK than in the US, but unfortunately (since each generation has to learn its lessons anew), such traditions can change.

    On a related note, I agree with Visitor’s statement in #4:

    And consider the second quote as hes conceding that they need the advantage of special consideration to stay in the fight.

    I wouldn’t ask for special privileges for my speech (to be denied to my opponents). It’s not just a question of fairness, it’s that the light of exposure favors those claims that are right. I say put all the ideas on the table, and may the best ideas win!

  30. visitor says:

    May I ask a question? Since I’m not LDS and have only followed LDS events since the passage of Prop H8 in CA I have no larger perspective of the LDS community.

    It seems to me as though this past General Conference will be much like Prop H8: an initially satisfying event that will, ultimately, turn out to be have persistent unsettling and divisive effects within the LDS community.

    Have there been such tumultuous responses to speeches of the authorities before? I know that the expulsion of the September Six must have been sobering. And I hope everyone didn’t swallow the limitation on women’s rights whole. But was the response anything like this? What about the response to the Priesthood Declaration?

  31. anton kozlik says:

    Until the LDS church uses its many resources to aggressively pursue Mormon-related cults endorsing multiple-wife marriages, especially for very young girls, I don’t believe they should even start to get into other people’s “bedrooms”. Utah is particularly blind when it comes to prosecuting this “breaking of the law” and it is no comfort to these young women to hear that if the Elders did wrong, they will hear it from God.

  32. chanson says:

    Visitor — I hope some others will answer your question because I don’t have a good feel for the LDS church’s evolution. I was raised Mormon up to my teen years, but I’ve been out for quite a while, so anything that has happened in the past eighteen years (including the “september six”) is new to me.

    That said — being on the LDS-interest Internet for the past few years — I feel like Prop 8 had a huge effect. Specifically, it felt like that was the point where the leaders made a choice to go from trying to be the ordinary guy next-door to saying “if the Evangelicals say that Christians need to hunker down in the bunker for the end-times, then we’re going with them!”

    Anton — They’ve been quite aggressive in throwing the polygamists out of the mainstream church (and denying any connection with them). But it’s my impression that they’ve been negligent in pursuing those crimes (with the local Mormon-controlled civic powers) because any polygamist publicity is bad publicity for the CoJCoL-dS.

  33. TT says:

    I have suggested above that the specific thing that Oaks is worried about is the “intimidation” of religious people. Indeed, he uses this term 7 times, more than he uses the terms “free speech” or “freedom of speech” combined.

    He seems to be making a case that religious people can should be able to express religious convictions in the public square. He lays out a legal, moral, and philosophical case for the presence of religious speech in the public square, and at the same time acknowledges its limitations. This speech is not some call to take away “free speech” of gay people, but to lay a foundation for the free speech of religious people.

    Now, let’s be honest. If the LDS church had done anything like what some activists choose to do to LDS members after the election, such as singling out LDS contributors, calling for boycotts on LDS owned businesses (even those that didn’t contribute to Yes on 8), demanding the resignation of LDS employees who contributed as little as $100, and sending threatening, anonymous letters in the mail, you all would be FREAKING out!

    If the LDS church looked up your campaign contributions to No on 8 (for those of you who actually donated), posted them on the internet, showed up at your work, exerted pressure on your employers to get rid of you, etc, etc, I have a sneaking suspicion that you wouldn’t be such great defenders of the “free speech” of those who oppose you.

    Perhaps it is the case that such perpetrators of “intimidation” are perfectly within their legal rights. In my reading, Oaks really spends little time suggesting any legal action against intimidation. Rather, he seems to be making a moral call that “religious actors” should not be scared out of the public square. This is a speech directed to them, encouraging them by providing an intellectual basis for, and the limitations of, putting religion into the public square.

    He does not believe that religious voices are a prior more important than non-religious ones, or that they should carry more weight. He only says that religious speech is doubly protected (like shouting “Allah is great” in a crowded theater?). Nor does the Oaks believe that the church should be immune from criticism, but rather has advocated that such criticism stay within the limits of civility and away from intimidation.

    As I have said above, there are in my view many problems with his speech, including some of the claims that I summarize above, but this speech should not be read for what it is not, not least because silly claims and overblown rhetoric only reconfirm the very divisions in society that he sees as irreconcilably locked in a battle.

  34. kuri says:

    TT,

    Your “if the LDS church had done the same thing” is an apples-to-oranges comparison. Prop 8 wasn’t an ordinary political contest. It wasn’t like most ballot measures where the stakes are roughly equal (and usually not particularly high for either side anyway). It was a ballot measure that stripped certain people of a fundamental right. The stakes were immensely high for gay people, and virtually non-existent for the LDS Church.

    So let’s make it an apples-to-apples comparison. If a ballot measure stripping Mormons of the right to marry (and possibly nullifying the marriages of all married Mormons) had passed, what would you be saying?

    If Mormons who had been stripped of the right to marry did the things you mentioned, would you still be saying, “Oh, intimidation! Oh, violence!”?

    Or would you maybe be admiring their restraint in doing no more than that after the irrational bigotry of their fellow citizens stripped them of a basic right that other people can take for granted?

  35. Sapphocrat says:

    You are not misreading or overreading this. He wants special rights for religionists (Mormons to the exclusive of all other religions, of course) to trump all else. There’s no other way to read it. He was very clear.

  36. chanson says:

    TT — OK, let’s talk about the claims of “violence and intimidation.”

    If anyone lost their job over campaign contributions or if anyone went to private homes to harass people over their political activities, that is inappropriate and illegal. I condemn such behavior (as do the leaders of the equality movement), and there are harassment and anti-discrimination laws that cover these possibilities.

    Regarding creating a Google map of contributors: It’s true that action was questionable. However, campaign contribution laws in the US are currently a huge mess. The LDS church itself initially under-reported its direct contributions in this campaign by a factor of 100, and there’s still no assessment of the value of the organizational contribution (calling lists, etc.). I find it very unfortunate that the CoJCoL-dS has made the cowardly decision to hide its institutional actions behind individual members, but if this encourages people to think about how campaign finance disclosure laws should be changed, then perhaps some good will come of it.

    Regarding boycotts: No one is obligated to buy anything from anyone else, and there’s nothing wrong with refusing to give profits to people who will be using those profits to fund political campaigns you disagree with. As to the claim that some were directed at LDS-owned businesses that didn’t directly contribute to Prop 8: you can be Mormon without affirming membership in that one particular organization (the CoJCoL-dS) which has chosen to turn itself into a single-issue political organization. Especially considering that that corporation has been excommunicating people and/or silently encouraging them to leave when they disagree with the political actions of the CoJCoL-Ds.

    One can definitely argue that such boycotts might be ill-advised, but they’re not even anti-democratic, and they’re certainly not “intimidation”. So how did they even get onto a list of the supposed “violence and intimidation”? Is their evidence for actual intimidation and “retaliation” that thin?

    I noticed that in Oaks’s talk, he implied there had been incidents of violence, but he never claimed that there had been any (unlike boycotts and some vandalism). Aside from pretending to be like the blacks during the civil rights era (who did suffer acts of actual violence) he says the following:

    Along with many others, we were disappointed with what we experienced in the aftermath of Californias adoption of Proposition 8, including vandalism of church facilities and harassment of church members by firings and boycotts of member businesses and by retaliation against donors. Mormons were the targets of most of this, but it also hit other churches in the pro-8 coalition and other persons who could be identified as supporters. Fortunately, some recognized such retaliation for what it was. A full-page ad in the New York Times branded this violence and intimidation against religious organizations and individual believers simply because they supported Proposition 8 [as] an outrage that must stop. [xv] The fact that this ad was signed by some leaders who had no history of friendship for our faith only added to its force.

    That’s his evidence of “violence.” The LDS church took out an ad in the New York Times claiming that they were victims of violence. Then he says that — since some of the signing religions aren’t always friendly to the Mormons — that must imply that this ad is impartial, hence accurate.

    Gay people, by contrast, can currently lose their jobs for being gay in many states and have been the victims of actual violence. Why aren’t you “freaking out” about that? Why isn’t Oaks?

    His plea would be a lot more convincing if he were calling for fair play on both sides. That includes his own. Gay rights leaders have denounced the handful of acts of vandalism — now where is Oaks’s corresponding statement to his people denouncing violence and intimidation against gay people?

    The closest item I found was here:

    At no time did anyone question or jeopardize the civil right of Proposition 8 opponents to vote or speak their views.

    OK, that is false. Dallin, do you even read your organization’s press releases? If you don’t remember that your PR department did question your opponents’ right of peaceful assembly to speak their views, then let me refresh your memory.

    This new speech is just another move in the CoJCoL-dS’s continuing rhetorical strategy to rebrand peaceful, democratic, Constitutionally-protected free speech as being “violent intimidation.”

  37. kuri says:

    TT,

    More like 1833 – 1904. Mormons resisted marriage laws — by breaking them — for over 70 years.

  38. Seriously Irked says:

    Oaks, himself, is technically a polygamist, having twice been sealed to wives according to the LDS tradition. Has he that little compassion towards those who want to formalize their own companionships?

  39. TT says:

    chanson,
    Here is where I think that we agree:
    1) It is the case that there were incidents of something that we could both call “intimidation” happened after the election that was specifically targeted at some Mormons.
    2) The targeting of Mormons as a group and individually as those who are primarily responsible for prop 8 has been a particularly important part of the post-prop 8 world
    3) Oaks has these incidents in mind primarily as the backdrop for his talk.
    4) You, I, and Oaks all agree that there are perfectly legitimate responses and protests that would not be considered intimidation.

    Here is where I am not sure if we disagree or not:
    1) Whether or not campaign finance disclosure laws are at the heart of the problem. I am not really sure what you are recommending in terms of changes to the laws. I don’t have any objection to transparency, nor does Oaks. What changes do you think need to be made?
    2) Whether or not Oaks sees violence as a major issue. The only use of the term is in his quoting of the NYT ad, not his own word. In my reading, his issue is about intimidation, not claims that Mormons are getting beat up. Even his ill-fated analogy to southern blacks is about intimidation.
    3) Whether or not you really think that the LDS church is obligated to “freak out” about incidents of violence against gays. These are obviously horrific episodes. In my view, the church has unambiguously and obviously condemned this behavior dozens of times over the past few decades. I do agree that more can be done with respect to Utah legislation on anti-discrimination and hate crimes, from what I know about it, but what the church says and does is different from what happens in Utah. Given that the church holds an identical position with respect to gay rights and gay marriage as does Barak Obama, I am not sure that it holds any greater responsibility than any other organization or group to take up this cause.

    Here is where I think we disagree:
    1) The targeting of Mormons individually or as a group is a necessary step to make the case for SSM. It is certainly the case that Mormons had a lot to do with the Yes on 8 campaign. That said, I think that the case for SSM when it takes place in a popular vote does not need to rely on protests, verbal attacks, mischaracterizations, and fear-mongering against Mormons in order to be successful. In a way, one can read prop-8 as a massive failure of the Yes on 8 campaign given that in an 8 year period public opinion swung 10% in favor of SSM. Mormons, I think, became an unfortunate and easy target in the aftermath, preying on the suspect category of Mormonism, old-timey stereotypes about polygamy, pedophilia, etc. in the popular imagination. While this particular class of oppenents of the church often demands its sympathy with their cause because of these past events in Mormon history, in an unfortunate irony, they demonstrate the exact opposite by stigmatizing Mormonism in the exact same way.
    2) Whether or not Mormonism has become turned “into a single-issue political organization.” I think that it would be difficult by any measurement to actually make this case. Outside of a few months in particular parts of Califonia, I can pretty much guarantee that discussion of SSM in church is pretty much zero. The total amount given by Mormons to Yes on 8 was far less than the tithing generated by my stake last year. The number of public speeches given by GA’s that address it is fractionally small. While this is certainly a huge media concern and personal concern for many, the reality of what LDS church life is like is far, far from this issue.
    3) Whether or not the post-prop 8 events constituted “actual intimidation.” Of course, intimidation is in the eye of the beholder. It is a slippery category. The extent to which it took place is hard to categorize. Of course, any good dictator knows that for intimidation to work you just need to make an example out of a few and the message is sent. You can be sure that many Mormons feel a lot more sensitive about getting involved in this cause because they feel vulnerable. Perhaps that is the whole point, and the protests have done their job of scarring Mormons away from getting involved. Oaks sees that is intimidation. Me, I am not sure, but I certainly don’t think it is a very admirable strategy, nor do I think it particularly wise.
    I blogged about this here:
    http://www.faithpromotingrumor.com/2008/11/open-letter-to-protesters-of-lds-support-of-prop-8/

    kuri,
    and that is evidence of what, exactly? certainly not your claim that some No on 8 activists showed a virtuous amount of restraint toward Mormons. my point is that there are many different ways that one can react in the aftermath of this vote , targeting Mormons being only one possible reaction. I happen to think there are more just, effective responses.

  40. kuri says:

    TT,

    What is “1890” supposed to be evidence of? That Mormons once faced a somewhat similar stripping of marriage rights? I agree; that would indeed be analogous (though oddly enough Elder Oaks never brought that up). That Mormons didn’t “violently” paint graffiti on government buildings in the aftermath? I suppose you’ve got me there.

    Seriously though, just as a thought experiment, what do you think Mormons would do if a state passed a ballot measure that made it illegal for Mormons to get married? Chuckle ruefully and say, “You guys won, no hard feelings”?

    “my point is that there are many different ways that one can react in the aftermath of this vote , targeting Mormons being only one possible reaction. I happen to think there are more just, effective responses.”

    Prop 8 probably would have failed without Mormon money and organization. Targeting the LDS Church and individual Mormons who contributed was therefore quite just (though arguably quite ineffective).

  41. TT says:

    Dude, kuri, I repeat, your hypothetical is not a hypothetical! It did happen, and that is exactly what most Mormons did. I am not suggesting that gay people do the same thing, only that your attempt at moral high-ground by invoking this hypothetical is really bad.

    Whether or not prop 8 would have failed is difficult to say without the Mormons is difficult to say. No on 8 still out-spent Yes on 8. In battles across the country where Mormons have been absent anti-SSM ballot measures have passed. In a way, as I mentioned above, it is possible to see Yes on 8 as a huge failure since it lost 10% of the vote in 8 years.

    It would be hard to characterize ALL of the reactions towards Mormons as “just,” no matter how many doors they knocked on. I am not claiming that ALL of the reactions are unjust, but that some were, which I see as unfortunate.

  42. Holly says:

    In battles across the country where Mormons have been absent anti-SSM ballot measures have passed.

    there hasn’t been a single anti-SSM ballot where Mormons have been absent. They made this a signature issue in the early 90s when it came up in Hawaii–that’s when they made their unholy alliance with what they’d always before called the great and abominable church of satan. Mormons haven’t always been as prominent in the fight over gay rights as in HI and CA, but they’ve never been absent.

    The biggest relevant hypothetical is what the church is going to do when, in 20 or 30 or 40 years, the tide of public opinion turns, and gay marriage is legal in, say, at least 45 states, in not all 50. At that point (if not sooner), polygamists and bigamists will also make a legal challenge about the right to marry more than one person–and not just polygyny, but for ADULTS of any gender to have more than one ADULT spouse, of any gender.

    At that point, the church will face a very difficult decision: does it support the legalization of polygamy, given that it is still an official doctrine of the church? Or does it repudiate it?

    If it supports legalizing polygamy, it faces once again the prospect of being seen as sexual renegades or swingers and tarnishing its wholesome family image, and if it opposes polygamy, it has to repudiate a doctrine it can’t repudiate without tarnishing Joseph Smith’s legacy.

    I have it on good authority that this is an eventuality that the church is already worried about, and one of the main reasons it’s working SO HARD to keep gay marriage illegal for as long as possible.

  43. Holly says:

    the 1890 thing is bullshit. Utah wasn’t a state in 1890, and the church made a calculated economic decision about what they were willing to give up in order to become a state. Money and political power were more important then as now to the Mormon church than moral and spiritual integrity.

    And you could also argue that packing up everything and moving to Mexico and becoming Mexican citizens (which some of my ancestors did) is a form of boycott, and evidence of some pretty hard feelings.

  44. TT says:

    Holly,
    excellent point re: one of the often unspoken concerns about SSM.

    Re: 1890. Of course there were some radicals who rejected the Supreme Court and others who rejected the church. The issue of what they were willing to trade, however, speaks directly to the question of what whether or not Mormons would revolt or whether they would deal with it. Again, I am no offering this as an analogy for what gays should do, but to how it is a bad analogy for justifying protests against Mormons.

  45. Holly says:

    Of course there were some radicals who rejected the Supreme Court and others who rejected the church.

    You mean, like everyone in charge of a temple, where plural marriages continued to be performed for years if not decades?

    There is no need to justify non-violent protests against Mormons after Prop 8. We don’t have to justify protests in this country. We just get to make them, in speech, in print, and through economic means. Protests can be more or less just in their targets and their goals, but they never have to be justified, because the constitution does it for us. The end.

  46. TT says:

    And when the quality of discussion falls back to SL Trib comments section levels, I’m out.

  47. kuri says:

    TT,

    OK, so let’s accept your assertion that we know what Mormons would do if their marriage rights were stripped because we know what they did circa 1890. I don’t accept that assertion myself; I don’t think the behavior of people in 1890 is very predictive of behavior in 2009. But let’s accept your assertion just to see where it leads.

    You say “1890,” but bigamy was always illegal in the US under common law. It was illegal under statute in Illinois since 1833. Did Mormons obey that law? No. When they moved to Utah, polygamy was illegal under Mexican law. Did the Mormons obey? No. When Utah became a territory of the United States in 1850, polygamy was illegal under common law. Did Mormons obey? No. The Morrill Anti-Bigamy Act was passed in 1862 to target Mormon polygamy. Did Mormons obey that law? No. The Supreme Court upheld the law in 1879. Did Mormons obey? No. Did they obey the Edmunds Act in 1882 or the Edmunds-Tucker Act in 1887? No and no. When Edmunds-Tucker was upheld by the Supreme Court in 1890, the LDS Church finally agreed to obey the law, but it didn’t actually crack down on polygamy until at least 1904.

    So here, then, according to your assertion, is what we know Mormons would do if they were stripped of marriage rights: they would do things such as intentionally break the law, evade warrants and subpoenas, lie in public, in print, and under oath, and generally defy the rule of law.

    They don’t bear up well at all in comparison to anti – Prop 8 protesters.

  48. kuri says:

    I should add that I was not at all attempting to invoke some sort of “moral high ground.” (Not initially, anyway, although the Prop 8 protesters certainly don’t suffer at all from the comparison.) I was only hoping that the thought experiment of putting yourself in the Other’s place might provoke some sort of empathy. A futile effort, it seems.

  49. Holly says:

    So here, then, according to your assertion, is what we know Mormons would do if they were stripped of marriage rights: they would do things such as intentionally break the law, evade warrants and subpoenas, lie in public, in print, and under oath, and generally defy the rule of law.

    They dont bear up well at all in comparison to anti Prop 8 protesters.

    excellent points all. And let’s remember some of the violent things Mormons were willing to do between Joseph’s “revelation” and 1890: destroy a printing press, fight the US cavalry, carry out a massacre.

    If, in fifty years, the fight against gay marriage triumphs and it’s just not going to happen, and gay rights activists just give up the fight at that point and say, “OK, we lost, no hard feelings, and hope you don’t mind about the violence and bloodshed along the way,” then we’ll know that they and Mormons are truly comparable in this matter of unorthodox marriages.

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