Question: How critical is the situation with religious freedom?
Elder Oaks: There are many contests about religious freedom in our country today. We’ve always had such contests, at least for a century. But now they’ve gotten to be very political and very divisive. And specifically, we’ve got nondiscrimination, which is a very important civic value, being set in opposition with religious freedom. And people are choosing up sides as if you couldn’t have both of them, and it’s not a good situation. And related to it is the fact that some of the contests are really impinging on free speech, something the media ought to be concerned about, as well as citizens generally.
Question: Is the First Amendment doing its job to protect religious freedoms in America?
Elder Oaks: The First Amendment stands as a barrier, but it’s constantly in interpretation. And some of the current interpretations of freedom of religion, for example, put that value in doubt. For example, I’m very concerned about an argument that’s being made by some scholars that religious freedom doesn’t really add anything to free speech, that as long as ministers are able to speak and as long as people are free to worship—all of that comes under free speech and there’s no reason to be concerned about the free exercise of religion; I’m quoting the constitution provision. That’s a very dangerous argument. The framers of our constitution must have felt that there was something very significant in the freedom of religion because they provided two guarantees for the freedom of religion. They guaranteed the free exercise of religion and they also guaranteed free speech. And both of those great values, the first freedoms we call them, combine to protect the freedom of religion. And that is being threatened by arguments that are being put forward and sometimes relied on impliedly or directly by courts.
Question: Do you think that religious and secular people understand the constitutional guarantees of freedom of religion?
Elder Oaks: Oh, I don’t think so, but people generally have not been very sophisticated about constitutional guarantees, so I don’t see that as something unusual. But I see it as a responsibility for well-educated citizens, members of the bar, and opinion leaders to be acquainted with the United States Constitution and its guarantees.
Question: What can people do to uphold the free exercise of religion?
Elder Oaks: There are a number of things that people can do to contend for it. One is to insist upon their right to be heard in the public square. There’s another theory abroad in the land and it’s relied on expressly by some judges and some scholars that religious values are off limits in the public square and that they certainly can’t be used by lawmakers, which is a preposterous argument. Anyone who knows anything about Anglo-American law knows that the law of crimes and the law of family and a lot of other laws are based on the Judeo-Christian heritage. You can take them right back into the Old Testament. And to say that religious values are not an appropriate basis to make laws, or, in other words, to say that this is wrong and therefore we’ll make it illegal, that’s a preposterous argument but it is gaining velocity today. And that’s one of the reasons for concern. People are saying in public debates and some legal philosophers are publishing books and contending that a person has to have a public reason for making a law or making an argument. And a public reason can’t be religious faith or religious values.
Question: Do you think a candidate’s religious beliefs or lack of religious beliefs affects their preparedness and ability to serve in office?
Elder Oaks: The U.S. Constitution says there shall be no religious test for public office. That’s a very important value in our society, and I think in any kind of public reaction to the question you’ve put, it’s off limits to say that a person is or is not a Christian or a Jew or a believer or whatever it may be. But it can never be off limits to the individual voter in their own heart in saying, well I’m a Catholic and I prefer a Catholic candidate. We can’t stop that and the constitution doesn’t forbid it, but the constitution forbids a public test, a religious test for public office.
Question: How do the protections and preservation of religious freedom benefit people who might not be considered people of faith?
Elder Oaks: Let me just call upon it and answer in these terms. We know that we cannot have a civilized society by depending upon laws and law enforcement to regulate the conduct of citizens. The amount of conduct of citizens in any respect, whether it is obeying the laws or not obeying laws, simply obeying ethical conduct or consideration of neighbor and so on. The amount of that that can be the subject of laws or that can be enforced by laws is a tiny fraction. The civilized society is held in place by obedience to the unenforceable. And it’s religion that teaches people to obey the unenforceable. And if you only have half of the people who believe in God and are religious, society still has a great interest in religion because it holds things together. And people who are not religious have ethical standards, and they have other standards. I believe as a religious person that the belief that I have that I’m accountable to God, now or later, holds me in line more rigorously than ethical standards or professional standards could ever hold me in line. And that’s why I think society has a great interest in religion, even if the people who are called upon to defend it are not themselves believers.
Question: What do you say to those who support religious freedom for others but don’t want to be imposed upon themselves?
Elder Oaks: That’s a very influential argument now. But I think that the people who make that argument fail to think about the fact that a religious person is entitled to the free exercise of religion. And in exercising their religion, they may do things that are at least emotionally offensive to other people. If they do things that are physically offensive to other people, the law will probably be a barrier. Certainly the free exercise of religion has an exception in government’s right to protect the health, welfare, and safety of the people. But I can’t refrain from the exercise of my religion by someone else’s feelings that I seem to be saying, “I’m holier than you are because I go to church.” I’ve got to be able to go to church, notwithstanding the way that makes people feel who don’t choose go to church. There are a lot of other examples that could be given, but finally when we live in a society, we must live in an atmosphere of mutual respect. I must have respect for people who have values different than my own, and I expect their respect for my having values that are different from theirs. Now, if I take my values into the public square and I say that there should be a law to require all businesses to close on the Sabbath, for example, that’s an old point of collision between believers and nonbelievers. And of course, different religions have a different Sabbath day. But the question of whether the law should enforce Sunday closing brings a collision. And if that law is enacted solely to enforce the religious belief of one group, it passes the limit. But if it is enacted to carry out some good purposes of health, safety, and welfare that can be shared by religious and nonreligious people, then there’s a right to make that kind of law. And there are a lot of other examples that could be given, but in fact, laws collide; whether they’re nondiscrimination laws or Sunday closing laws, they collide with the contention that you’re trying to force your religion upon me by making the laws. And that’s why you have to be able to look at whether there are good public reasons for a law. But I think we pass the limit in that argument if we say to someone, “I won’t accept your argument that there are moral reasons for this.” If there are public reasons as well as moral reasons, the law shouldn’t be vetoed because some people voted it for moral reasons.
Question: You have stated that people of faith should walk shoulder-to-shoulder to support religious freedom. But instances such as banning nativity scenes on public land or preventing religious groups from using public schools in which to meet has frustrated many people of religious faith. What can they do?
Elder Oaks: One thing that people of religious faith can do is bring a lawsuit to enforce the free exercise of religion. Now one thing that is notable in our law today, which I know as a former judge and a longtime law professor and practitioner of law, is that the law of free speech has been very well developed. There are thousands of cases testing the limits of free speech. There are very few cases testing religious freedom and the free exercise of religion.
Why? Because people interested in free speech, for one reason or another, which I can’t explain entirely, they’ve been very likely to bring lawsuits. And there are a lot of free speech lawsuits. But there are plaintiffs behind them. Courts make law and define the law, under the First Amendment, when a plaintiff brings a lawsuit. And there have been many times more plaintiffs on free speech than there have on religious freedom, so the law is not well developed.
Question: Can ground be gained by doing this?
Elder Oaks: It is contrary to the law for someone to stand up in a public school room and preach religious doctrine. We all know that; there are many cases on that. But it is also contrary to every principle for a teacher to stand up and attack religion in the public schools and universities, and we don’t have any cases on that. But it’s quite clear to me that the same principle that forbids a teacher to teach religion forbids a teacher to attack it. And there are examples every day in public schools and in public universities of teachers attacking religion. And if they were challenged, I think the law would be developed in that area.
Question: How can the defense of religious freedom move forward in society without the contention and challenges involved in the courts?
Elder Oaks: The contention that comes from unresolved controversies in this area is poisonous to the civic atmosphere, and it’s a disadvantage to all of us as citizens, and I have hope for the future that we can come—we, as we have controversies—can come to understand one another better and out of mutual respect can find ways not to surrender our differences but to learn how to live with them.