Erosion of Religious Freedom

Impact on Churches

Michael K. Young

Young, Michael K. “Erosion of Religious Freedom: Impact on Churches.” In Lengthening Our Stride: Globalization of the Church, edited by Reid L. Neilson and Wayne D. Crosby, 225–242. Provo, UT: Religious Studies Center; Salt Lake City: Deseret Book, 2018.

Michael K. Young, then president and chancellor of the University of Utah, presented this essay at “The Erosion of Religious Liberties—Impact on the International Church,” the International Society’s twenty-second annual conference, April 2011, Brigham Young University, Provo, Utah.

I read something in the paper not too long ago that was looking at trend data for what people are doing with respect to churches in the United States—what they believe and how they feel. The conclusion of the article essentially was that within a couple of generations, we will very likely have no churches in America. As you can imagine, that was a very startling realization, and there was some reason they were identifying that.

The first observation was not that young people were essentially unspiritual or uninterested in spiritual things or things that relate to the Spirit, but just the opposite—young people were interested in spiritual matters but not interested in organized religion. This fact is already reflected in a very significant decline in the participation of young people in organized religion. As the article described, they were spiritual but “unchurched.”

The second observation made was that the spiritual path being pursued by young Americans is more like meditation; they are not looking to religion for ultimate truths but are seeking truths that are true to them. Their conclusions are as follows: Your truth is fine, my truth is fine, and his truth is fine. Everyone’s truth may be different, but they are all equally acceptable. These conclusions have created a very significant movement away from organized religions—particularly religions that seem to have some foundational set of beliefs that are unalterable. Looking at these trends, we see the likelihood of Americans moving in directions that would ultimately undermine the stability, the presence, and the need for churches. That is really unsettling.

I think most of you are familiar with Elder Oaks and the wonderful talk he gave at BYU–Idaho. One of the things he said was that a writer for the Christian Science Monitor had predicted the coming century will be “very secular and religiously antagonistic,” with “intolerance of Christianity [rising] to levels many of us have not believed possible in our lifetimes.”[1] So those sets of concerns, coupled with an opportunity through a Church assignment I had, have turned my interest to the United States.

Why Focus on the United States?

I would like to talk about the United States today for a number of reasons. First of all, the United States is just as important as any other country in the world. I have talked for many years about the importance of religious liberties to people and how foundationally important it is as they ask these important questions in their life: Who am I? Where am I from? Why am I here? How should I behave? What should I teach my children? How should I treat my fellowman? Where do I go? Those are the kinds of really important questions that motivate literally billions of people around the world, but they motivate and engage Americans every bit as much.

Historically, when I was serving on the US Commission on International Religious Freedom, we were often asked, “Well, why are you not looking at the United States?” Part of the reason was that in an era of limited resources and time, you looked at the most horrific abuses, and we did not have those in the United States. In the United States, we were not arresting, torturing, and killing people for their religious beliefs. We were not discriminating, generally speaking, against them in terms of jobs and other sorts of things. And so there was no reason to look there.

As time has gone along, what is happening in the United States has begun to interest me for many reasons. This is the heart of our Church. This is where the headquarters of the Church is located. We need this view in America to see the Church develop and progress in the way it can serve not only the members here but, indeed, the members worldwide.

It is as important to Americans as it is anybody else. But I think, importantly, it is also a profound foundational right. A new book was recently published that does some statistical work suggesting a relationship between religious liberties and other liberties, not only civil rights but economic development, income disparities, rights for men and women, economic rights, and lack of conflict.[2] All of those things are highly correlated in statistically significant ways with the presence of freedom of religion in a country. It becomes important in that regard and with things like the gross domestic product, employment rights, and so forth.

From my perspective, one of the things I learned serving on the US commission is that at the end of the day, no country is likely to have more religious liberties than the United States does. We are a bellwether; we are a model. Our capacity to argue persuasively and intelligently on behalf of religious liberty around the world and to make this part of our foreign policy has a kind of credibility because of our own behavior. And to the extent liberty begins to erode here in the United States, it will inevitably have significant ripple effects around the world. Looking at what happens in the United States, in my judgment, becomes significant and important.

Are We at Risk?

The question is, “Are we at risk in the United States?” As a country essentially founded on religious principles, founded by many people who were themselves escaping religious persecution, is religious liberty at risk here? This chapter will have a little bit of “lawyerly dimensions” to it, for which I apologize in advance to the non-lawyers. I am trying to repent from being a lawyer, but it still bubbles up from time to time.

We do have an event I think the lawyers in the audience worry about: Smith v. Division of Employment in the early 1990s. This is a significant case that fundamentally took away a lot of the special judicial protection we have understood historically for two hundred years to be afforded to religion. Essentially, the Smith case concluded that any law of general applicability that is neutral on its face can apply to religion as well as to everything else. Now, there were exceptions, but that case was one of those epical events.

What worries me more is the gradual erosion. Major events such as the Smith case certainly come along from time to time, and one needs to be attentive. And, indeed, I think people generally are attentive to those major erosions. What worries me more is a very profound sense I have that there is a sort of gradual erosion of religious freedoms in the United States. I think of the old story of the pot of water with the frogs in it, and if you drop a frog in a boiling pot of water, it jumps out. But if you put it in the pot and slowly bring it to a boil, it will simply stay there and be boiled to death. That is what I worry about: the water is gradually warming up and up and up.

Let me give you another example. I want to be very clear because I do not want this example to be misunderstood, and I will explain why in a minute. Have you had the chance to visit the Holocaust Memorial Museum in Washington, DC? The most unsettling part of the Holocaust Memorial Museum to me is the initial portion that describes chronologically the gradual introduction of the Nuremburg Laws. In the beginning, these laws were, on their face, quite benign—not so bad. I might have disagreed, but also I might have been willing to vote in favor of these first laws. And then, the second law was a little worse, but it was just a little amendment to this first law. And the third law, well, it went just a little bit further—and a little bit further and a little bit further, until they were putting people on trains and sending them to gas chambers. It was unsettling in a profound way to see the initial lack of concern among the lawyers about the gradual erosion of the rights of Jewish people and how such apathy ultimately resulted in “laws” ordering the extermination of more than six million people.

Maybe Hitler started out that way, but the lawyers did not start out that way. They started out in a very different way, saying, “Well, we have got a little bit of a social problem here, and we just need to tinker with it a little.” That tinkering occurred again and again and again and again. Now, please do not misunderstand this example. I am not saying the people who are behind these incursions on religious liberties here in the United States are anything like or similar to the Nazis. Please do not misunderstand that example. The point is that laws can accrete in very subtle ways over time and create very serious problems you would never have anticipated, agreed with, participated in, or been willing to credit or understand at the beginning—this is a reality and not a historically unprecedented reality. It is very important for us to understand, and that unsettles me quite a bit.

During the time of the founding of our country almost two centuries ago, we really did have a fundamental confidence in and appreciation for religion. Look at what Alexis de Tocqueville wrote in the nineteenth century: “Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions. . . . I do not know whether all the Americans have a sincere faith in their religion, . . . but I am certain that they hold it to be indispensable to the maintenance of republican institutions. . . . The Americans combine the notions of Christianity and of liberty so intimately in their minds, that it is impossible to make them conceive the one without the other.”[3]

So the understanding that religion should be free and is necessary to a republic is important foundationally for this country. Even if we were sometimes inconsistent in our application of that principle, there was a general adherence to it and very little erosion.

Arguments Undermining Religious Liberty

Today one senses the consensus that has guided us for so many years may be eroding in fundamental ways. The notion of whether religion is unique, good, important, or even necessary in a just society is up for question in our society. And the debate increasingly challenges what role, if any, religion should have in the public square. Let me give you a few examples of that increasing challenge. For me, the arguments tend to coalesce around three broad arguments. I do not think, for the most part—and I am going to say “for the most part” because there is a little footnote to this statement—these people are necessarily ill-intentioned. I do not think they are out there saying, “Let us see if we can suppress a religion today.” Again, that is not what is going on.

Religion Is Not Special

Let me give you the first set of arguments asserting that religion is actually not special. These arguments do not deny the goodness of religion, but they claim religions do not hold a monopoly on virtuous conduct, and that is absolutely true. They go on to say that, therefore, all good and moral organizations should be recognized and treated equally. That is to say, religions have no special place. Religions are just one of a number of good organizations, like the Humane Society and Mothers Against Drunk Driving, which are both good organizations. The idea is that essentially they are all equivalent. There is a moral equivalency and an institutional equivalency between all these, and religions really deserve no more protection than those organizations deserve—no less but no more.

Now, what does that mean? It means if you are going to build a house of worship somewhere, why should that receive a special zoning exception or any other particular land-use requirement waiver or exemption any more than any other charitable relief house or any other kind of organization that does good in society? That is an increasingly profound and important argument that you hear again and again at the local level, at the state level, and even at the national level. This argument asserts that religious claims for special treatment should be evaluated on their merits, just as everybody else’s claims should be. If we are not willing to give an exemption for union members, for teachers, for members of any charitable organization or any organization that is itself designed to accomplish some social good, why should we give an exemption to people of a religious organization or to the religious organization? Religion is like everything else. It is sort of a hobby, an interest group that people have, a particular faith, and an endeavor. But somebody else may want to make the highway safe for bicycles, and these two interest groups are really pretty much equivalent. So religious organizations are not entitled to any more protection than, say, the Sierra Club.

Now, the logical corollary of this argument is that religions have to compete with other political and economic values in every instance that they come in conflict with each other. So requirements that a church employee must adhere to standards of that church must compete with equal employment and nondiscrimination laws. Tax exemptions have to compete with arguments of tax equality and tax fairness. Land-use restrictions have to be pitted against the desire of a church to build a chapel. And that list goes on and on and on.

In each individual case, the social value might be seen to be very great and the incursion on the right to worship relatively small. And time after time, religion loses. And it may indeed be that in that particular case, the harm to religion may be minimal. But the gradual accumulation of these adverse decisions ultimately, profoundly, and unalterably destroys the right to freedom of religion just as if we had repealed the First Amendment in the first place. The accretion of harm, while barely perceptible at the moment, ultimately undermines freedom of religion in a way that would have been impossible had you simply posed the ultimate question of the importance of religion and that had been front and center in the decision in the first place.

From this perspective, religion is simply another example of a do-good organization that is fulfilling some social purpose, with people who are guiding themselves by whatever light they choose to guide themselves. Every time, the issue of freedom of religion gets pitted against that social value, and every time, the interest group in interest of that social value is likely to be more powerful than the religious group, so time after time, you will see accretion beginning to occur.

We see this somewhat in the Smith case. The Smith case basically said that any law of general applicability applied equally to religion as well. We see an interesting variation of that even more recently in the case called Christian Legal Society v. Martinez. That case involved a chapter of the Christian Legal Society on the campus of Hastings College of the Law in California. The law school had a nondiscrimination policy that included sexual preference as well as ethnicity, religion, etc. The organization received a certain number of small benefits from the school. This lawsuit was lodged because the Christian Legal Society did not permit people to assume leadership positions unless they were willing to adhere to the tenets of the Christian Legal Society, which was largely evangelical based and, therefore, it was not comfortable with the notion of gay rights. At least some range of those who were avowedly practicing homosexuals were not permitted to run for offices in this particular organization.

The Supreme Court held that if the institution received a public benefit—which it did in modest ways, but a public benefit nonetheless—the school may require adherence to its nondiscrimination policy. It did not answer the questions as to whether it must require adherence, although there is a footnote in the case that at least leaves that possibility open. Let me give you some immediate problems that the ruling raises. What do we do with the Latter-day Saint Student Association if schools require it to take a pledge of nondiscrimination, a pledge of nondiscrimination based not merely on the way it treats people but on what its members believe? It has not happened yet; it may not happen. But you can see we are not a far distance from something like that. If you look at this progression of cases—small cases and small movements—they are potentially significant. The court did not say the school must require adherence or that they must have such a policy. But that question was raised, and I think Justice Kennedy, who is the swing vote in these rulings, seems to be inclined to be in a position where he says in essence, “If it is for the public good at the end of the day, they may require and they must require in certain circumstances those nondiscrimination policies.”

If such an exemption is not required by the First Amendment, then we are subject to the local whims of state legislatures and of local governments, all of which are passing laws, many that are being debated around the point of whether there is a religious exemption or an employment requirement. But I can give you the even more extreme example in which the court granted certiorari just a few weeks ago in a case that involves what is called the “ministerial exemption.”[4] The ministerial exemption really permits people from a church to pick their clergy regardless of any requirements relating to state and federal laws. The ministerial exemption has been a bedrock in US jurisprudence for hundreds of years. All of the US circuit courts of appeal acknowledge that.

In this new case, the real question raised for review by the lower courts was the degree to which a particular job was either secular or sectarian. One lower court decided it was sufficiently sectarian that the local employment laws would apply. And another court concluded it was not sufficiently secular, so the local laws would apply. And yet another court concluded it was sufficiently sectarian, so the ministerial exemption prevailed. The court took certiorari in those cases. Normally, the court may simply decide that the two lower courts got the balance right. That would be an odd thing for the Supreme Court to decide. The court does not usually do that; it usually decides the fundamental question. And the ministerial exemption has never been decided by the Supreme Court before. So you can imagine at present what it would be like if you had to apply all the employment laws as you are picking bishops, stake presidents, and all the leaders we call out of the lay members in our Church. These cases are unsettling and potentially far-reaching if, in fact, they take what is now a relatively short step from that perspective.

Other examples of this trend include a photographer in New Mexico who was fined for his unwillingness to take pictures of a gay wedding. The Department of Health and Human Services is now revising its standards for the conscience exemptions for doctors who are uncomfortable performing abortions because they go against their religious beliefs. Licensing and accrediting agencies, especially in the field of psychology, are increasingly requiring all lifestyles be taught as equally acceptable and equally appropriate and equally personally sound. Now it may in the end be true, but at the end of the day they are requiring the teaching of these lifestyles not as a matter of scientific research but as a matter of accrediting, and if you are an accredited psychologist coming out of these programs, you may have to adhere to standards in terms of counseling of that sort. The head of the Equal Employment Opportunity Commission recently argued that sexual orientation liberty could become the type of right that should prevail over competing religious belief liberty. I think we are seeing—or beginning to see—these kinds of arguments prevail: Religion is a nice thing, and we are amused you believe it, and good for you if it causes you to do good charitable work. That is terrific, but it is no different than being a member of a union, being a member of PETA, no different than being a member of the Sierra Club. As a religious organization, you are going to get all the rights they are entitled to but no more.

Religion Is a Private Affair

The second argument I can see prevailing, which is gaining a great deal of currency in the popular mind, is that religion is a good thing, but it is essentially a private affair and should be entirely excluded from the public square. That is the argument advanced by many of the opponents of Proposition 8 in California.

As one scholar wrote, “Religious participation in the political process can produce dangerous results.” He asserts that fervent beliefs fueled by suppressed fear are easily transformed into movements of intolerance, repression, hate, and persecution. There are, in short, in his view, substantial reasons for exercising caution with respect to religious involvement in the public square.[5]

Another opponent of Proposition 8 put it slightly differently but with the same intent. He said, in essence, that while he thought religious folks were good people, they should get out of politics and go back to their primary work of helping the victims of Katrina. Now this is interesting because it suggests not only that religions, religiously motivated dialogue, and religiously moved people do not deserve special treatment but that they should be disadvantaged in the public square. Normally, they should not have a favored place in our constitutional order, but they should not even be afforded the free-speech protections every other citizen in our nation is guaranteed.

The first time I heard this set of arguments, it was jaw-dropping. I thought nobody could seriously make those arguments, much less take those arguments seriously. In fact, for textualists, in the Constitution there is a theory hard to ignore—the First Amendment. And even Justice Scalia had an enormous difficulty seeing it. He managed to read the First Amendment out of the Constitution. I did not think the bulk of people could do that, but lo and behold, the judge did. In this case, which is now under appeal, the district court judge said, in essence, at the end of the day, they were not entitled to argue in favor of this. If this was the basis, then they would not be entitled to use that as a basis or justification for this law.

What are the implications of this? Well, if we are subject to all discrimination laws and are not permitted to argue against them based on some religious set of tenets, then we might be in a position where the state really is not allowed to give us those protections to which we historically had been entitled. This sounds a little farfetched. How could this possibly happen? Well, a judge has already done so. But let me extend this scenario just a bit further as we think about it. How then does the government force us to adhere to these discrimination laws if we are not permitted to talk about it in the public square? How do they do that? Well, one way they do is through the interstate-commerce laws, but more importantly, you have to remember that all religions not only survive but thrive based on the bestowal of a number of benefits: the right to register—that gives you the right to own or transmit land—and the right to publish and to distribute information. These are rights often in jeopardy in a foreign country. As Cole Durham will tell you so brilliantly, these rights are often where the rubber hits the road. It is not that they are rounding people up and arresting them, but they are not allowing them to register, they are not allowing them to publish materials, they are not allowing them to witness, and they are not allowing them to proselytize. In short, they are not allowing them to do those things that are so essential to so many religions. And in the process, not allowing them to do that fundamentally undermines their ability to function.

Think about our church. What if we have an incapacity to register, if we were not tax-exempt, so our activities were all taxed, not just our commercial activities but every activity we engaged in? Or what if your charitable donations to the Church were no longer tax exempt? In the latter case, I think you would still pay your tithes and offerings to the Church, but it would cost you a lot more to do so. If such were the case, the Church would be not only equivalent to the Sierra Club and other such organizations with respect to tax exemption, it would be significantly and demonstrably disadvantaged. And that is where this argument leads. It necessarily leads to the notion that you thought you were equivalent to the Sierra Club, but you are not. You are actually more dangerous than the Sierra Club, and your dialogue is sufficiently irrational that we are not going to let you even participate in public dialogue. You might think this does not make any sense. How can the government do that? Well, they have already done that. This is the Reynolds case, which we all know dealt with polygamy, but this is also the case of Bob Jones University. Bob Jones University is a religiously based institution that had a principle that forbade blacks and whites from dating. The Internal Revenue Service essentially said this principle so fundamentally violated public policy that the IRS withdrew Bob Jones University’s tax-exempt status. And that happened in our lifetime.

Let me give you another example. There are two cases that have recently decided to challenge the constitutionality of the Defense of Marriage Act (DOMA), the federal law that protects traditional marriage. DOMA does not require states to recognize a marriage between two people of the same gender that is performed in another state. It also has some federal implications in that the federal government does not recognize same-gender marriages for pension purposes, tax-exempt purposes, and so forth.

A judge in Massachusetts has declared DOMA unconstitutional on two grounds. One argument used by the judge is the Tenth Amendment, which the judge interprets as saying that marriage itself is left entirely up to the states. That is a pretty silly argument, particularly given that DOMA deals with federal benefits. But setting that aside, the other argument is that DOMA violates equal protection. Now you can understand that argument if in fact you say members of the LGBT community are a particularly protected class, because then the level of scrutiny for protected classes goes way up; courts will give strict scrutiny to any laws that might discriminate against a group in a protected class. Nothing ever survives strict scrutiny.

Okay, so that is the way the judge could have decided. What was interesting is the judge did not do that. The judge ruled DOMA is unconstitutional because it violates the equal-protection clause. He reached that conclusion not on the basis that members of the LGBT community are a suspect classification but on the basis that there is no rational basis for DOMA—no rational basis at all. In essence, the judge concluded that Congress was essentially out of its mind when it passed DOMA and did so without any rational basis. Admittedly, Congress is often out of its mind, and that is fair enough. But on this particular seventeen-year-old law, the judge concluded Congress had no rational basis when it enacted DOMA. It is presumed Congress always has a rational basis—it may be a margin of rationality, to be sure, but it always has a rational basis. Nothing ever fails that test. But this judge concluded DOMA failed the rationality test.

Again, you might think the Massachusetts court’s decision is pretty extraordinary, except about six months later, the Department of Justice and the Office of the Attorney General said the US government’s executive branch will no longer defend DOMA. Historically, there are only two reasons why the executive branch cannot defend a law. One reason is that the law is an unconstitutional incursion on executive power, and the second reason is that there is no reasonable constitutional argument in its favor. Essentially, the Department of Justice is now agreeing with the judge that there is no rational basis, no reasonable argument for that particular law. These are small moves—but again, moves with potential significance.

Religion Is a Bad Influence

Let me give you the third argument that religion has a negative impact on society. There are a few examples in which one would see this trend manifest itself. Many believe that there is no place for the Ten Commandments in parks, buildings, or public places because a public manifestation of those beliefs must be kept in the closet and cannot be out in the public square. It would be unconstitutional for the government to proclaim a national day of prayer. It would be impermissible for people of faith to advocate religious doctrine or beliefs in their campaign for supporting any law, including Proposition 8.

This is an area in which there is growing sentiment against religion. The arguments in this category complain that religion has a negative impact in society. This argument moves from a neutral view of religion to an aggressive attitude against religion and religious believers that says to keep religious believers in the closet if we can—keep them quiet; keep them in their homes, where they can talk about religion all they want, but do not let them out in public, because they might scare others with their religious nonsense.

The argument is that religious bodies are like corporate entities—usually motivated by money, power, and prestige. And as such, they are prone to just the same socially harmful behavior and misconduct and need similar regulation. The following is what one observer wrote on the subject: “Religious organizations really are no different than large corporations. The whole range of destructive behavior can be seen in both: fraud, extortion, misappropriation of funds, lying, deceit, covering up scandals like child abuse or doctoring financial records for the sake of the organization’s image, and the list goes on. If religious actors are not deterred and punished for bad acts, they wreak great wrongs.”[6]

According to this argument, religious organizations essentially endanger social justice, diversity, and harmony. They threaten secularism, pluralism, diversity, and social equality—so goes the argument. As another put it: “Religious participation in the political process can produce dangerous results: fervent beliefs fueled by suppressed fear are easily transformed into movements of intolerance, repression, hate, and persecution. There are, in short, substantial reasons for exercising caution with respect to religious involvement in the public square.”[7]

We have not ourselves been immune from this kind of criticism. One observer states that religious entities often create an environment “that is propitious for those who would abuse children and disabled adults, or who would cover up such abuse to protect power, image, and wealth.”[8] This argument has also been directed against the Church: “The [Latter-day Saint] system is constructed so that abuse stays internal, victims have no escape route, and perpetrators can have a field day.”[9] And they go on to say religious beliefs are antiquated—out of touch with modern-day science.

As one famous atheist wrote, “Religion is about turning untested belief into unshakable truth through the power of institutions and the passage of time.”[10] In that context, religion should be particularly disadvantaged because it is capable of causing particular harm.

You can see these three arguments gradually move little by little from the position that religions and religious believers are no longer protected to the point where their enemies actually get affirmative engagement on the part of the political system to control and repress religion. You can already see the manifestations of this in very practical ways.

Is there an alarm sounding? No evidence of that. In fact, to some extent the opposite is true. If you look at the polling data, the majority of Americans believe religion is important and essential and believe it in large numbers. But they are not particularly worried about the degree of religious freedom; they think it is just about rights.

To the extent they are worried, they are more worried about establishment clause issues. They are more worried that perhaps government is doing too much to promote or sustain religion, as manifested in issues such as public prayer at school, displays of the Ten Commandments, and similar things—all of which the public believes should be discouraged. The perception is not that there is some problem arising in this gradual way in the United States, but rather that everything is fine, or to the extent there is a problem it is to the other side—that government may be favoring religion.

What to Do?

Let me conclude with just a few thoughts. What do we do about this? I think others in this room are going to have much better insights and ideas, and I am very much looking forward to the panel that is going to follow because I think the brilliance they will bring to this will far exceed any ideas I have. But let me just make a few suggestions that occurred to me as I think about this.

First of all, I think we need to be attentive to the gradual erosion of religious freedom in the United States. This sounds very simple, but it is more complicated than it seems. I think a lot of the time we even sit back and rely on the Church and its institutional structures, such as the Church’s Office of General Counsel and the terrific work that goes on out of Cole Durham’s shop. We think they are going to spot this stuff, and we are okay. We just do not have to worry about it. The truth of the matter is that a tremendous amount of this is occurring at the local level, where we really do not have the kind of information, the work, or the capacity as an institution to do very much about it. And I think we need to be more attentive than that to watch local zoning decisions, to watch what city councils are doing with respect to employments laws, and all sorts of other protections and prohibitions that might be imposed. And I think this is something that is ultimately incumbent upon every member because there is no way institutionally that it can be observed and combatted.

However, that does lead to the second dimension: I think we need allies. I think this is an area in which we need not only to align with other faith-based organizations who share the same concerns with us but I think we need to reach out even more broadly. I am always struck by the extent to which freedom of religion is so profoundly connected to other civil liberties, and I think we need to link into those organizations that protect and are concerned about those and help weave into their thought process and their dialogue the notion of freedom of religion and how central and important that is. Conversely, we would need to carry our half of the burden, which is we need to be better champions of civil rights more broadly and human rights more broadly. Those kinds of alliances can be very important. We should be among the most passionate civil libertarians in the world. And as we do so, I think we get allies in this fight. These allies, if we could help them better understand that religion is not the threat, will be the saviors that the fight needs for a particularly profound set of reasons. And in turn we understand the other kinds of collateral civil liberties that need to surround it, and we will champion those. These are the important alliances that need to be made.

Third, we need to do this very much for the right reason—not just simply to save the world for Latter-day Saint missionaries, as laudable and important as that is, but we know how critical free will is and how essential it is to the gospel. Elder Bruce R. McConkie has described it as the most basic doctrine of the Church,[11] as Cole Durham described it a decade ago in his brilliant oration here at a BYU devotional.[12] Religious liberty is not necessarily the most important principle, but it is foundational. As Elder McConkie goes on to say, “If there were no freedom of worship, there would be no God, no redemption, and no salvation in the kingdom of God.”[13] We have a profound moral obligation to protect this, not only on our behalf but on behalf of so many others around the world for whom it is such a passion. I was in Europe recently. When seeing the great art and visiting the great cathedrals and museums in Europe, you cannot do so without being struck at how profoundly important religion is to so many people around the world. Protecting their capacity to live that passion and to feel that passion seems to me an enormously noble and worthy goal. We need to think about its application in that context.

We need to not be defensive about this. What we are doing is actually not a rearguard action but is a wonderful, progressive, and important thing to do for the world. And the positive arguments in favor of this are positive for all—not only religious believers, but for those who do not believe. If you look at the correlation between this right and so many other goods it provides in society, it is incredibly profound. From that perspective, we ought to warmly engage and welcome our critics. The thing I love about our critics is they take us seriously. The thing that drives me nuts is when somebody says, “Oh, that is very nice. I am glad you believe that,” or, “That is a cute thing you believe.” I would rather someone really come at me, hammer and tongs: “How could you possibly believe that? That will destroy civilization as we know it.” That person is taking me seriously. Those are the people we ought to embrace. Those are the people we ought to love and work together with. It is our critics who understand how important this is and are the ones who are most concerned and engaged. Those ought to be our best friends, because those are precisely the ones who are taking this every bit as seriously as we do.

Finally, I think we need to be vigilant and go back to where I started. This erosion to our religious freedom is happening frequently, consistently, and often at a level and pace that is just hard to discern where the tipping point is, but it is also happening so often at the local level. If we are engaged and committed and work to that end, I think our capacity to stem this tide, to raise the alarm, and to do what we need to do for our Church and for people everywhere is important.

I conclude as I suppose I always do about this: We need to trust in the Lord. If we care, if we try, if we do it for the right reasons, and if we are charitable and Christian in the way we do it and why we do it and what we do it and how we do it, then I believe we are on the Lord’s errand. I believe he will use us in places where he needs us to be. I believe he is not going to let this Church and the center of religion fail on this earth, and we are on his errand. I appreciate the opportunity to talk a little bit about what I know with the International Society, but I do think we all have opportunities to look in both directions across the seas and a little closer to home as well.


[1] Michael Spencer, “The Coming Evangelical Collapse,” Christian Science Monitor, 10 March 2009, Commentary/Opinion/2009/0310/p09s01-coop.html.

[2] Brian J. Grim and Roger Finke, The Price of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century (New York: Cambridge University Press, 2010).

[3] Alexis de Tocqueville, Democracy in America (New York: Walter, 1847), 334–35.

[4] EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (2010).

[5] William P. Marshall, “The Other Side of Religion,” in Law and Religion: A Critical Anthology (New York: New York University Press, 1993), 44.

[6] Marci A. Hamilton, “Church Autonomy Is Not a Better Path to ‘Truth,’” Journal of Law and Religion 22, no. 1 (2006–07), 215–16.

[7] Marshall, “The Other Side of Religion,” 859.

[8] Marci A. Hamilton, “The Rules Against Scandal and What They Mean for the First Amendment’s Religion Clauses,” Maryland Law Review 69, no. 1 (2009), 131,

[9] Marci A. Hamilton, “How Other Religious Organizations Echo the Roman Catholic Church’s Rule Against Scandal—A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Church of Jesus Christ of Latter-Day Saints,”,

[10] Richard Dawkins, “The Root of All Evil,” Channel 4 UK, 2006,

[11] Bruce R. McConkie, A New Witness for the Articles of Faith (Salt Lake City: Deseret Book, 1985), 655.

[12] Cole Durham Jr., “The Doctrine of Religious Freedom,” BYU Speeches,

[13] McConkie, A New Witness for the Articles of Faith, 655.