Thoughts on Religious Freedom and The Church of Jesus Christ of Latter-day Saints
By Ken K. Gourdin
I just ran across an interesting exchange regarding the appropriate contours of religious liberty in the United States and according to its Constitution at Mormon Dialogue & Discussion Board from last September. It was begun as a response to this Web page on the Web site of the Church of Jesus Christ of Latter-day Saints: http://www.mormonnewsroom.org/official-statement/religious-freedom (last accessed today).
My interlocutor said, “I am interested in any legislative intent analysis you could provide that shows the framers intended religious persons to be in a position of higher protection than others.” I replied:
The fact that religion is mentioned (and specifically treated) in the First Amendment indicates to me that religious liberty was of special concern to the Framers. While I disagree with him that mere “Equal Protection” of religion would be adequate and that (apparently) treating religion in the First Amendment as the Founders did, was, therefore superfluous, [screen name redacted] is correct in implying that the Founders could have confined constitutional religious protection to mere “Equal Protection” if they had wanted to do so. There would have been no need for the Founders to treat religion specifically in the First Amendment if all they had intended was for it to have “Equal Protection.” A basic rule of statutory construction is that if is possible to do so, statutory language should be given effect rather than denied effect, and that legislators don’t use language which they don’t intend to mean anything or to have any effect. I aver that the same is true of the Founders when they drafted and ratified the Constitution.
My interlocutor further inquired, “And in your analysis would you please distinguish between what the framers intended for Christians [vs.] Catholics, Muslim, and Hebrew?”
I freely admit that I cannot do so. I doubt the Founders envisioned the degree of religious pluralism that exists in the country today, so I’m not sure they intended anything with regard to non-Christian groups. As I told [screen name redacted], however, I would prefer that courts continue to engage in the messy business of attempting to determine how the Constitution’s religion clauses should apply in our religiously pluralistic society than for them simply to throw up their hands and say, “Forget it. Freedom of religion is impractical and unworkable in our modern society. Freedom from religion, it is!” For more of my thoughts on the issue, I’ll see if I can dig up an op-ed I wrote that was published last December regarding Christmas, religious pluralism (and irreligiousness), and the First Amendment, and [send it to you via private message].
My interlocutor said, “[N]ot creating special rights is [a/the] main canard used against anti-discrimination regarding sexual orientation.” I replied:
It’s not a canard that the supposed “right” to homosexual marriage has no historical basis in the Constitution specifically or in law generally. With due respect, you’re comparing apples and Buicks in attempting to draw any sort of equivalency between the religious freedoms enshrined in the First Amendment (which have existed for 226 years, and had their roots long before that) and the supposed “right” to homosexual marriage. (That said, whatever my views regarding homosexual marriage [or regarding what the Constitution says (or doesn’t say) about it], I don’t support discrimination against homosexuals in housing, employment, public accommodations, et cetera. To label a view opposing homosexual marriage discrimination overgeneralizes, oversimplifies, and poisons the well.)
My interlocutor said, “[A]dding insult to injury[,] creating special rights ONLY for religious people excludes everyone else.” I replied:
The suggestion that Constitutional principles should be adhered to creates no “insult” or “injury” in itself. As for exclusion of the nonreligious, you’re right: the Founders felt that religion was integral to our society. I agree with them. (They felt that the Constitution was suitable to the government only of a people which, by and large, is religious, and is wholly inadequate to the government of any other). And you persist in speaking of the First Amendment’s religion clauses as though they’re recent innovations. They’re not. They’re hundreds of years old, and their roots are even older. If you feel they should be changed or jettisoned, you’re more than welcome to so advocate.
My interlocutor said, “[A]nti-discrimination regarding sexual orientation protects EVERYONE” (all-caps in original). I replied, “I agree, but as I have already explained, opposing homosexual marriage (and failing to see any historical ‘right’ thereto in the Constitution or in other law) does not necessarily mean that one favors discrimination against homosexuals.”
My interlocutor then said, “Without more direct analysis and statements from the Church Leaders, this issue begs of confirmation bias.” I replied, “The Brethren have been more than direct enough. Whether you like what they’ve had to say is another matter. And I wonder if you know what ‘confirmation bias’ is.”