90: Mormon Expositor Weighs in on Religious Freedom and Gay Rights

Nick hosts a panel discussion with Craig, Mark, and Heather about the church’s recent press release regarding religious freedom and gay rights.

Play

Links:
Mormon Leaders Call for Laws That Protect Religious Freedom
LDS Press Release: Note to Journalists on News Headlines
TribTalk: LDS leaders Oaks, Christofferson on religious freedom, LGBT rights
All Things Considered: Mormon LGBT Announcement Met With Cheers, Skepticism
LDS Press Release: Church Supports SLC Nondiscrimination Ordinance
Salt Lake City Ordinance #63 of 2009 (the LGBT nondiscrimination ordinance)

Snopes: Houston Hustle
KiwiMormon on Patheos: On tuning into another LGBT drama in ‘Murica by Gina Colvin
Huffington Post: Dear Mormons: Thanks But No Thanks by Bishop Gene Robinson
YouTube: USA for Africa – We are the World

20 Comments

  1. ChrisWir

    The LDS church had a press conference where they “support” LGBT-people (only) when it comes to their rights to housing, jobs and public transportation. They also explain that they feel threatened when it comes to their religious rights to discriminate against people.

    Since people are born LGBT, through hormone regulations during embryonic development, and people choose LDS, through own free will at the age of eight, I would like to point out how bizarre this press conference really was.
    We have people who have CHOSEN their religion and then accept (limited) rights for others – depending on on what genetic set-up those people are BORN with.

    Let us turn it around! Let put genetic set-up ahead of free will. This seems more natural:
    Have people born LGBT hold a press conference, stating that they support LDS peoples limited rights to housing, jobs and public transportation – regardless of their religious choice.

    I was born straight. I did not wake up one day and decide that I should be straight.
    I do not want mormons, muslims, or any other religion to dictate what rights I should have or have not because I was born straight.
    Likewise, I do not want any religion to try to dictate laws for those born non-straight.

    If anything, people (regardless of what genetic setup they are born with) should regulate how much discrimination religions can be allowed to spew out from their pulpits.
    Regardless of who they spew on – blacks, women, LGBT, etc. – enough is enough!

    … And now they even kicked John Dehlin out. I guess the Mormon-moment is far gone down the potty.

    Reply Feb 11, 2015 @ 13:34:57
  2. ryan

    I have a background in law and religion and just wanted to say that you did a great job. Not a lot of people mention the distinction between statutory and constitutional religious freedom rights. Thanks for explaining that to people. You probably came across this in your research, but Oaks has actually been on record criticizing Employment Div. v. Smith. In his world the free exercise clause should exempt religious people from generally applicable laws (with some exceptions obviously). He even criticized Scalia for being in the majority in that case.

    I really like your assessment of the Houston case that Oaks used to demonstrate an attack on religion. I had the exact same reaction after reading about what actually happened. If anything it is an example of how religion is privileged in society, not under attack.

    Anyway, great job. I only have one criticism/correction. Someone said that the people in Employment Div. v. Smith were probably not even Native American based on their last name (Smith). Actually, Alfred Smith was Native American. He was a somewhat well known activist in Oregon.

    Here is an excerpt from the NYT explaining why his name is Smith:

    “Anthropologists say the Klamath people have lived there at least ten thousand years, making them one of the oldest settled tribes in the New World. But in the nineteenth century, federal Indian agents took away the Klamath people’s descriptive names and gave them “American” names to make them easier to keep track of.”

    Smith died last year in Oregon at the age of 95. There is a picture of him at this link.

    http://www.eugeneweekly.com/20141218/news-briefs/noted-native-activist-al-smith-remembered

    Great podcast. I really enjoy the episodes with a legal theme.

    Reply Feb 11, 2015 @ 22:43:48
    • Craig Stiles

      Thanks for the feedback and correction, Ryan! Glad you liked it. I enjoyed delving into a topic that I hadn’t really explored to that level of depth before.

      Reply Feb 11, 2015 @ 23:22:08
    • Nick B

      That’s great feedback, Ryan. I was the one who mused on the last names, but I feel bad for making that snide assumption now, as that’s the exact sort of cultural imperialism that I find pretty reprehensible. It certainly happened to other tribes as well, so I guess I’m not surprised

      I do have more legally-themed episodes in mind. Looking at the establishment clause as it relates to Utah and Mormons could be fun, and I think there are enough cases involving Mormons and SCOTUS that we could do a full one on that too.

      Reply Feb 12, 2015 @ 06:32:57
  3. LDSRevelations

    And the UT legislature responds in a timely manner to the Bros. request.

    http://www.sltrib.com/news/2169420-155/religious-liberty-bill-released-as-talks-on

    Reply Feb 12, 2015 @ 14:08:48
  4. Orrin Dayne

    The Church is trying to preserve the rights of church-related institutions (e.g., BYU, Deseret Book) to discriminate in contexts not protected by the First Amendment. It annoys me when their presentation blurs the line between what is and isn’t protected under the First Amendment.

    This isn’t about defending the sacred ground that the First Amendment protects. The First Amendment fends for itself. You don’t need to have a press conference saying, “Don’t pass laws that are unconstitutional under the First Amendment.” Right?

    So what’s really going on here then? Well, the debate is about what to do with discrimination that is currently legal, but *not* sacred/protected under the First Amendment. It’s about whether legislation should take away the non-First-Amendment-protected ability to discriminate with respect to our LGBT citizens.

    Thinking about the debate from this paradigm doesn’t do the Church any favors. They want it to be about the sacred First Amendment. But it isn’t. And no press conference can change that.

    Reply Feb 13, 2015 @ 11:24:43
    • ryan

      Orrin,

      You are right on. The church’s rhetoric implies that first amendment rights are being violated when any generally applicable law incidentally infringes their religion somehow. Of course, this isn’t true. I think the church use the constitutional rhetoric for two main reasons. 1) Oaks doesn’t agree with the Court’s current stance on what is protected by the First Amendment. When he was in law school the First Amendment was interpreted more broadly, and he thinks it still should be. 2) I think it is stronger rhetoric for them to talk about the constitution and how their rights are supposedly being violated rather than say they are really asking for broad statutory exemptions to anti-discrimination laws.

      Reply Feb 13, 2015 @ 17:21:01
  5. Randy

    Great Podcast! Just what i’ve been waiting for. So much talk around this, and the law is what really matters (in the short term anyway).
    On the following 4 scenarios i’d love to hear your thoughts.

    Skeletal version:

    1) religion-based discriminator>non-religion base discriminatee

    2) religion-based discriminator>religion-based discriminatee

    3) non-religion based discriminator>religion-based discriminatee

    3) non-religion based discriminator>non-religion base discriminatee

    Let’s assume the business below is a caterer with an owner that has a couple of employees helping her.

    Narrative versions:

    1) Owner is LDS and refuses to cater a gay wedding reception on religious grounds

    2) Owner is a Baptist and refuses to cater to an wedding reception of an LDS Temple wedding reception based on the fact that Masonic symbols are used in and around the temple

    3) Owner is non-religious but refuses to cater a wedding reception of an LDS Temple wedding reception based on the fact that it is repugnant that close family members (parents) were not allowed to attend.

    4) Owner is non-religious but refuses to cater a gay wedding reception on grounds that it grosses her out. (repugnant)

    Reply Feb 13, 2015 @ 13:27:49
    • Randy

      A better version of #4 above:

      Owner is non-religious but refuses to cater a gay wedding reception on the grounds that it undermines the fabric of society (non-traditional marriage) that has been in place since the foundation of our country.

      Reply Feb 13, 2015 @ 13:45:38
    • ryan

      1) Owner is LDS and refuses to cater a gay wedding reception on religious grounds

      Assuming that there is an anti-discrimination law in place protecting LGBT people’s rights to use public accommodations, the LDS caterer would not be able to discriminate on the basis of sexual orientation. That is as long as their business was a public accommodation as defined in the statute.

      The other thing that would come into play is a state RFRA (statute) protecting religion. In New Mexico, the courts said the RFRA did not apply in a similar scenario but that was based on a narrow reading of that specific statute. Whether or not the religious person is exempted from the anti-discrimination law would depend greatly on how the two statutes are worded. If the LDS owner can show that their religious beliefs are being substantially burdened, then they might get an exemption. A lot of courts tend to read RFRA laws friendly toward the government, but it really depends on the specific statute and the court.

      There are no constitutional rights at issue here, just statutory rights. The only way the LDS person would have their 1st Amendment free exercise of religion violated is if the anti discrimination law was only being applied to LDS people. The LDS caterer would have to rely on statutory exemptions if they wanted to get around the anti-discrimination laws (this is why the church is very concerned about how the statutes are written. They know the constitution is not going to give them the broad protection/exemptions they want).

      2) Owner is a Baptist and refuses to cater to a wedding reception of an LDS Temple wedding reception based on the fact that Masonic symbols are used in and around the temple

      This is basically the same thing, except it would be discrimination against religion instead of sexual orientation. Discrimination against religion is protected by Federal law as well as state law in most places. As long as the caterer is considered a public accommodation, then they would have to follow the law and not discriminate based on religion.

      Again, if there was a state RFRA or state constitutional law exemption, then that may apply depending on the wording of the two statutes.

      No constitutional rights of the Baptist are being violated because the anti-discrimination law is a generally applicable law which does not normally implicate the free exercise clause.

      Also, the baptist may be able to get around the discrimination laws by saying the discrimination has nothing to do with the religion and everything to do with the symbols and the location. This might be a hard sell to a judge because the symbols and the location are part of the religious practice. I’d have to research more to see if something like this has come up.

      3) Owner is non-religious but refuses to cater a wedding reception of an LDS Temple wedding reception based on the fact that it is repugnant that close family members (parents) were not allowed to attend.

      The non-religious owner would have to follow the law just as the religious people above had to follow the anti-discrimination laws. However, the non-religious person may not have any chance of getting a statutory exemption like the religious people above had. If a state RFRA only provides protection to religious belief, then it will depend on how the state courts and the statute define religious belief. There are places in the law where religion has included secular moral beliefs. This is a real issue that gets debated a lot in academia. “Why is religion special?” Right now it is likely a court would not provide an exemption to the non-religious person, but I think that statutes should include secular moral belief protections as well as religious beliefs.

      Some judges have said that a religion just means a philosophy of how to live life anthat answers certain ultimate questions. IF you claim you are non-religious but are a secular humanist then you may get the same protections that religions get. This is generally not the case though. Religion usually does get special treatment (whether it is right or wrong). I could probably write pages on this topic alone, but I won’t bore you.

      4) Owner is non-religious but refuses to cater a gay wedding reception on grounds that it grosses her out. (repugnant)

      Same case as the above basically, but there would have to be a state law protecting LGBT people from public accommodation discrimination.

      These are great questions, and they highlight how religion sometimes gets special treatment under state RFRA laws. Some academics think that state laws providing religious exemptions to generally applicable laws violate the establishment clause because they favor religion. I have sympathy for this argument and think it has a lot of strong points to it. To fix state RFRA laws to make them constitutional you would just have to add the phrase “religious and moral beliefs” instead of just religious.

      Reply Feb 13, 2015 @ 18:31:17
      • ryan

        Also, this article gives a pretty good overview of religious exemption law. The best part is the map that shows the state of every single states religious exemption laws. Example, whether or not they have a RFRA and whether their state constitution has been interpreted the same way as the federal constitution.

        http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/

        Reply Feb 13, 2015 @ 19:12:09
        • Nick B

          Ryan, thanks both for the discussion (perhaps I should have had you lead the episode!) and this article in particular. For those of you who don’t know, the Volokh Conspiracy is a legit legal blog run by Eugene Volokh, and is a great source for good discussion and analysis.

          Reply Feb 20, 2015 @ 23:06:09
  6. JT

    Well done, very informative – much appreciated. Thanks.

    Reply Feb 13, 2015 @ 14:30:01
  7. Randy

    Ryan: I have read your comments and the entire article you referenced. Thank you for responding so thoroughly. Very helpful. I am grateful!

    Reply Feb 13, 2015 @ 23:07:41
  8. ozpoof

    Thanks for this, and thank you to the straight people who are fighting this fight. I’m gay, but like so many am scared to make any noise, even if it means fighting for my own rights.

    I’ve pretty much given up on having a “normal” life where I can openly love a man I love, let alone marry him, but this issue needs to be delt with for the sake of those gay people who will follow.

    Thanks again for the discussion and your concern.

    Reply Feb 15, 2015 @ 08:01:36
    • Heather

      You’re makin’ me sad ozpoof. If you want to find someone to love openly, then go for it!

      Reply Feb 19, 2015 @ 10:55:52
    • Nick B

      This is both the most touching and most sad thing I’ve read. Don’t give up, ozpoof, and in the meantime I’ll continue to try to make amends for my small part in being on the wrong side of the issue.

      Reply Feb 20, 2015 @ 23:04:26
  9. Brock

    What was that outro/intro track? It sounds somewhat like Praise to the Man..

    Reply Feb 18, 2015 @ 21:15:11
    • Heather

      Last year I made a comment on a podcast that I’d love it if someone came up with 8-bit hymns. One of our listeners took me up on my challenge and submitted two different 8-bit songs that were compilations of church hymns and other songs. We picked this one to be our “theme music.” It’s a combination of Pachelbel’s Canon (also known as Pachelbel’s Canon in D) and at least 2 hymns. Praise to the Man is definitely one of them. I think We Thank Thee Oh God for a Prophet is the other. There might be more. Both of his songs were clever as hell. It’s called Canon in G’s (as in garments). Here’s a link to the full song. http://mormonexpositor.com/Canon_in_Gs.mp3

      Reply Feb 19, 2015 @ 11:01:21
  10. JT

    Holland joins Oaks in his religious freedom rhetoric.

    This Feb 26, 2015 speech may be worth discussion.

    Holland was speaking at the Fish Interfaith Center at Chapman (Disciples of Christ affiliated) where he returned after 10 years to celebrate the center’s 10th anniversary.

    https://www.youtube.com/watch?v=Ol9lzCG7E7k

    Here’s a tidbit:

    “All of us must be ever more effective in making the persuasive case for why both religious belief and institutional identity are more relevant than ever and deserve continued consideration and privilege within our society. “

    Reply Mar 01, 2015 @ 19:37:14

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