Elder Oaks Testifies before U.S. Congressional Subcommittee

At the request of the First Presidency and the Quorum of the Twelve Apostles, Elder Dallin H. Oaks of the Quorum of the Twelve testified in support of the Religious Freedom Restoration Act before the U.S. House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights on 13 May 1992. Only two other times has an LDS Church representative brought an official Church stance to Congress.

If passed, the bill, which has the sponsorship of 188 members of Congress and the support of a broad spectrum of religious and civil libertarian groups, would restore the standard that requires government officials to show a “compelling governmental interest” before interfering with religious practices.

The introduction of the bill came in the wake of the 1990 U.S. Supreme Court decision in Employment Division v. Smith. The Court did away with the compelling governmental interest clause, ruling that a state need only show that its action advances a legitimate government policy.

The following is the text of Elder Oaks’s testimony before the subcommittee:

Mr. Chairman, I am privileged to appear before you to testify on behalf of The Church of Jesus Christ of Latter-day Saints in support of Congressional enactment of H.R. 2797, the Religious Freedom Restoration Act. I am here to present the official position of our eight-million-member church at the request of its highest governing bodies, the First Presidency and the Quorum of the Twelve Apostles, of which I am a member. As a general rule, our church does not take positions on specific legislative initiatives pending in Congress or state legislatures. Our action in this matter is an exception to this rule. It underscores the importance we attach to this congressional initiative to restore to the free exercise of religion what a divided Supreme Court took away in Employment Division v. Smith (1990).

I have had considerable personal experience with the Constitution and laws governing the free exercise of religion. Upon graduation from the University of Chicago Law School in 1957, I served as a law clerk to Chief Justice Earl Warren. For a decade I was a professor of law at the University of Chicago. During the last year of that service, I was also the executive director of the American Bar Foundation. For nine years I was president of Brigham Young University, the nation’s largest church-related university. I then served for three and one-half years as a justice on the Utah Supreme Court. I concluded that service in 1984 when I was called to full-time service as a member of the Quorum of the Twelve Apostles. My professional publications have included three books and numerous articles on the legal relationships between church and state.

History

The history of The Church of Jesus Christ of Latter-day Saints (sometimes called Mormon or LDS) in America illustrates the importance of requiring a “compelling governmental interest” before laws can be allowed to interfere with the free exercise of religion.

I know of no other major religious group in America that has endured anything comparable to the officially sanctioned persecution that was imposed upon members of my church by federal, state, and local government officials. In the nineteenth century our members were literally driven from state to state, sometimes by direct government action, and finally expelled from the existing borders of the United States.

On 27 October 1838, Missouri Governor Lilburn W. Boggs issued an order to the state militia that the Mormons “must be treated as enemies and must be exterminated or driven from the state, if necessary for the public good.” Three days later, segments of the Missouri militia attacked a small Mormon settlement at Jacob Haun’s mill. Seventeen men, women, and children were killed and thirteen more were wounded. After a reign of terror that included the burning of homes, the seizing of private property, the beating of men, and the raping of women, over ten thousand Mormons were driven from that state.

In the 1840s, after founder and Church President Joseph Smith was murdered by a mob while in state custody, Illinois state authorities supported or condoned the lawless element who evicted the Mormons from their cities and drove them across the Mississippi River to the West. This expulsion compelled the Mormons’ epic migration to the Great Basin, which was then beyond the borders of the United States.

The experience of the Mormon pioneers is analogous to the compelled migration of many of this country’s founding settlers—the Pilgrims, Separatists, Quakers, Catholics, and Puritans who fled England and Holland to escape religious persecution and to seek a sanctuary where they could practice their religion free from persecution.

I have a personal feeling for these persecutions, since some of my forebears came to America as refugees from religious persecution in their native lands, and most of my ancestors suffered with the Mormons in their earliest persecutions. For example, my third great-grandmother, Connecticut-born Catherine Prichard Oaks, was among the Mormons expelled from Missouri and later driven out of Illinois. Fleeing religious persecution, she died on the plains of Iowa, a martyr to her faith.

Following the pattern set by William Penn, whose 1682 constitution for the Quaker Colony of Pennsylvania had a model provision for safeguarding the religious liberties of its citizens, leaders of my church drafted a constitution for the proposed State of Deseret that contained a strongly worded guarantee of religious freedom. This proposed state applied for admission to the Union in 1849, but in the Compromise of 1850, Congress organized the Mormon areas into the Territory of Utah.

The persecutions continued. In the 1850s, the government of the United States, too willing to believe lies about conditions in Utah, sent an army of several thousand federal troops to subdue the supposedly rebellious Mormons.

From the 1860s through the 1880s, Congress and some state legislatures passed laws penalizing the religious practices and even the religious beliefs of the Latter-day Saints. Under this legislation, the corporate entity of The Church of Jesus Christ of Latter-day Saints was dissolved and its properties were seized.¹ Many Church leaders and members were imprisoned. People signifying a belief in the doctrine of my church were deprived of the right to hold public office or sit on juries,² and they were even denied the right to vote in elections.³

Most of these denials of religious freedom received the express approval of the United States Supreme Court. It was a dark chapter in the history of religious freedom in this nation. I have a personal feeling for this chapter as well. My grandfather’s oldest sister, my great-aunt Belle Harris, was the first woman to be imprisoned during the polygamy prosecutions. In 1883, when she was twenty-two years of age, she refused to testify before a grand jury investigating polygamy charges against her husband. Sentenced for contempt, she served three and one-half months in the Utah territorial penitentiary.⁴

The Compelling Governmental Interest Test Must Be Restored

The conflict between individual rights to freely worship God and government attempts to regulate or interfere with religious practices remains today. For decades the United States Supreme Court adhered to the First Amendment guarantee of free exercise by requiring the state to demonstrate a “compelling governmental interest” before interference with religious freedom would be tolerated. This test struck an appropriate balance between the needs of government to establish rules for the orderly governance of our society and the rights of citizens not to be unduly restricted in their religious practices. In those instances where elected officials approved laws which interfered with a specific religious practice, they had to sustain the burden of justifying their action by identifying a compelling government reason or interest for doing so. They also had to demonstrate that they had interfered with the religious practice by the least restrictive means possible. The compelling governmental interest test provided an essential protection for the free exercise of religion. Such a protection is vital. There is nothing more private or personal than the relationship of an individual to his or her God. There is nothing more sacred to a religious person than the service or worship of God.

With the abandonment of the “compelling governmental interest” test in the case of Employment v. Smith, the Supreme Court has permitted any level of government to interfere with an individual’s religious practice or worship so long as it does so by a law of general applicability that is not seen as overtly targeting a specific religion.

This allows government a greatly increased latitude to restrict the free exercise of religion.

If past is prologue, the forces of local, state, and federal governmental power, now freed from the compelling governmental interest test, will increasingly interfere with the free exercise of religion. We fear that the end result will be a serious diminution of the religious freedom guaranteed by the United States Constitution.

You will hear from others today whose religious practices have already fallen victim to government interference under the Supreme Court’s new standard. They will demonstrate the detrimental effects of the Smith decision in a manner more powerful than I could. I wish to point out, however, that most of the court cases involving government interference with religious liberty involve religious practices that appear out of the ordinary to many. By their nature, elected officials are unlikely to pass ordinances, statutes, or laws that interfere with large mainstream religions whose adherents possess significant political power at the ballot box. But political power or impact must not be the measure of which religious practices can be forbidden by law.

The Bill of Rights protects principles, not constituencies. The worshippers who need its protections are the oppressed minorities, not the influential constituent elements of the majority. As a Latter-day Saint, I have a feeling for that principle. Although my church is now among the five largest churches in America, we were once an obscure and unpopular group whose members repeatedly fell victim to officially sanctioned persecution because of their religious beliefs and practices. We have special reason to call for Congress and the courts to reaffirm the principle that religious freedom must not be infringed unless this is clearly required by a “compelling governmental interest.”

When the Supreme Court determines that a right is guaranteed by the Constitution, it has routinely imposed the compelling governmental interest test to prevent undue official infringement of that right. It is nothing short of outrageous that the Supreme Court continues to apply this protection to words that cannot be found within the Constitution, such as the “right to privacy,” and yet has removed this protective standard from application to the express provision in the Constitution’s Bill of Rights that guarantees the free exercise of religion. The Constitution’s two express provisions on religion suggest that protection of religious freedom was to have a preferred position, but the Smith case has now consigned it to an inferior one. That mistake must be remedied, and H.R. 2797 is appropriate for that purpose.

Conclusion

Mr. Chairman, The Church of Jesus Christ of Latter-day Saints commends the sponsors of H.R. 2797, the Religious Freedom Restoration Act, for their recognition of the importance of the free exercise of religion to the freedom and well-being of our pluralistic society. Although we would prefer that the Supreme Court reverse the Smith case and restore the full constitutional dimensions of the First Amendment protection of freedom of religion, we believe that this statutory restoration of the “compelling governmental interest” standard is both a legitimate and a necessary response by the legislative branch to the degradation of religious freedom resulting from the Smith case. For Mormons, this legislation implements in federal law a vital principle of general application embodied in our church’s eleventh article of faith, written in 1842:

“We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”

Thank you, Mr. Chairman.