Equal Protection vs. Freedom of Religion

We the People - Constitution

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We the People - ConstitutionRecently, Dallin H. Oaks, a high ranking Elder of the Mormon Church spoke at Chapman University School of Law on February 4 2011. In his speech he made the observation that;

“Religious teachings and religious organizations are valuable and important to our free society and therefore deserving of special legal protection.”

He claims this “special protection” in the first Amendment, in the clause:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

On the surface this is a simple argument. The first clause of the first Amendment contained in the Bill of Rights, it must be special. But in the time line of history, first isn’t necessarily best, or most important.

As Elder Oaks admits, the key first phrase is intended to establish a separation of church and state. The new found revolutionaries did not want a situation like the Church of England, where the head of state was also the head of a particular church.

He then goes on to describe how the “pre-eminent place” of the clause on religion makes it along with freedom of the speech and press, the “dominating” civil liberty.

This teaching is quite dangerous, because it ignores the other failings of that early society, namely slavery. It wasn’t until the passage of the 14th Amendment that all people were guaranteed equal protection under the law.

One of the classic arguments against emancipation of the slaves in America was religious.

“[Slavery] was established by decree of Almighty God…it is sanctioned in the Bible, in both Testaments, from Genesis to Revelation…it has existed in all ages, has been found among the people of the highest civilization, and in nations of the highest proficiency in the arts.” Jefferson Davis, President, Confederate States of America

“The right of holding slaves is clearly established in the Holy Scriptures, both by precept and example.” Rev. R. Furman, D.D., a Baptist pastor from South Carolina.

Slavery, and even the withholding of all religious privileges from African-Americans in Elder Oaks own church until 1978 was the result of religious interpretations of a passage in the Bible, mainly Genesis 9:25-27:

“Cursed be Canaan! The lowest of slaves will he be to his brothers. He also said, ‘Blessed be the Lord, the God of Shem! May Canaan be the slave of Shem’.”

Christians in bygone days believed that Canaan had settled in Africa and was the beginning of the so-called Negro race. Believing this curse still applied, Mormons used their belief in the pre-eminence of religion to withhold the highest blessings of their religion from black people.

It is illustrations such as this that illustrate why the 14th Amendment was necessary. And even though it came long after the 1st Amendment, it was necessary to help all people, regardless of their social status in the United States to receive equal protection under the law.

But why is Elder Oaks arguing this today? He is arguing the pre-eminence and priority of the freedom of religion because his church has spent many years trying to impose their belief system on society by preventing same-sex couples from marrying.  Their financial and ecclesiastical support of Proposition 8 in 2008 California elections is currently winding its way through the court system and he is asking the Catholic church, another major proponent to ban same-sex marriage, to stand together with them on this principle that they are justified by their religious convictions.

Their argument may have worked prior to the adoption of the 14th amendment, but the equal protection clause is specifically designed so that religious morality tests cannot be used for justice or equal application of the law.

Amendment 14

1. All persons born or naturalized in the United States, and subject to the jurisdiction  thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction  the equal protection of the laws.

The First Amendment is a guarantee that individuals may worship what where and when they chose without government interference. It does not give religions special rights in determining how government treats people not of their faith. In the sphere of public debate, they hold no special position, but must argue their points on the same footing as people who hold different beliefs.

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11 Thoughts to “Equal Protection vs. Freedom of Religion”

  1. David Gene

    Your article is OK, but misses a few important points:
    1. Many of the strongest arguments by the founding fathers and others to free the slaves (& actions to help free slaves, such as the underground railroad) were based in and motivated by religious beliefs, thus the issue of slavery was not religious, but a human issue,
    2. Dallin Oaks clearly states that where someone’s religious belief infringes on another person’s natural rights, governments should protect the other person’s natural rights (he talks about stealing or theft, but this can also be applied to slavery and other items),
    3. The church he represents had many members slaughtered, raped and even had the governor of Missouri issue an extermination order of members of the church in part because the church supported the abolition of slavery in a state that supported slavery (to be fair, there were many reasons, but slavery was one of the root causes),
    4. There is no “natural” or “constitutional” right or protection given to people to change the definition of marriage, nor to impose a “new” morality on the rest of society. The 14th ammendment indeed affords equal protection and other laws even say that citizens may choose whom they will marry…but this was always under the definition of marriage being a relationship between a man and a woman. So called “Gay Marriage” is dependent on fundamentally changing the definition of marriage in order to make those arguements apply. Arguing that definitions should change is like arguing that gravity doesn’t exist. Even if you win the argument, it simply doesn’t add up, intuitively, morally or legally.

    1. Thank you David for your thoughtful reply.

      Point #1 – yes there were religious arguments on both sides of the slavery issue. Likewise, the gay marriage debate is also a human issue, not necessarily a religious one, yet religion is used to justify withholding the benefits of marriage from same-sex couples, and that is what I addressed and the parallel I drew.

      You could have left item #3 off the list because the persecution of Mormons in Missouri was for many reasons that had nothing to do with slavery.

      Item #4. The definition of marriage has changed throughout history. More importantly the way society has implemented marriage has evolved plenty. 40 years ago it was considered illegal and immoral for blacks to marry whites. 200 years ago women had no rights in marriage. 500 years ago there was no state sanction of marriage, only religious sanction, and marriage was more important for property rights than for community moral standing.

      Once the state got involved in sanctioning marriage it fundamentally changed how marriage could be administered, especially since marriage was no longer solely a sacrament of the church. With government controlling who gets married and who not, different standards apply than if religion controls it.

      As to natural rights, no such thing exists. America is a nation of laws, and if a law is not written it does not exist. This concept of natural laws is comprised of beliefs that are outside of the constitution and unenforceable in a court of law. Whereas it is true that there is no explicit definition of marriage or marriage rights in the constitution, the 14th amendment, as well as Article 6 are designed as catchalls for equal application of laws. Religious objection to equal application of secular laws is treading dangerous ground in a constitutional government that has declared a wall between church and state. A wall that protects both directions, not just one.

  2. Mat

    During the entire history of this country marriage has always been between a man and a woman. While it is true that marriage was restricted based on race at one time. However when the race restriction was removed it was still man and woman.

    While I will agree that the administration of marriage changed as Govt control the fact remains that it has been an institution between a man and a woman throughout our history.

    1. Well Mat, sometimes marriage was between a man and multiple women. In some cultures it has even been between a woman and multiple men. This leads me to believe that marriage is defined by the culture of the time. Several states in the US have already decided that marriage between two people of the same gender is legal. Thus, our culture is defining marriage different than in the immediate past, and that is okay.

  3. Mat

    But still a man and a woman. Multiples of one perhaps but very rarely in this country and we are spekaing of this country. When speaking of multiples, in the US, I do believe that the idea was squashed in that whole Utah thing.
    Mind you I am not argueing that Gays should not be allowed to cohabitate or join in some sort of union. I am merely argueing that they should have their own insititution as the institution of marriage has, in this country, always been intended for a man and a woman. And I have no problem with thier insitution having all of the same rights and responsibilities. I do hate to use the words their and they…….

    1. Giving them all the same rights and responsibilities of marriage but calling it something different is what we call “separate but equal”. It could just as well have been argued the blacks got all the benefits of the bus, except the front, which they did, but there is an injustice in that type of reasoning.

      Personally, I would like to see government get out of the marriage business altogether. Every couple should have a civil union, and only a civil union. But as long as “marriage” is the word used in the law, it should be available to all couples willing to abide by its principles.

  4. Mat

    I wouldn’t exactly argue with that (Gov getting out)

    I would disagree about blacks and the bus. Race is immutable. At this point in time Sexual orientation is not.

    When one wants to drive one of them traditional automobiles one gets a regular old operators license. When one wants to drive a big rig one gets a Commercial Drivers license. Both are licences to drive.

    1. Re: the immutability of sexual orientation; Neither Human sexuality nor race are binary, but range along a spectrum. There will always be outliers that provide anecdotes for an argument, but for most individuals, their sexual orientation is immutable. I realize that those who are immutably homosexual comprise 10% or less of the population, but they are still human beings, they still have families, and they still raise children.

      The drivers license analogy is weak because the differences in licenses is based on training and skills. What skills or training should be required for marriage? With the availability of adoption, IVF, and surrogate motherhood, the ability to have and raise children is no longer limited to fertile heterosexual couples.

      I would also object to the drivers license analogy because currently there are zero restrictions for a heterosexual couple obtaining a license of marriage. Marriages and divorces are often contracted within months of each other, and all sorts of shenanigans occur with heterosexuals and the marriage contract. If it were analogous to a drivers license there would be some sort of qualification that had to do with skills and training, not just opposing plumbing.

  5. Mat

    Sexual orientation will not qualify as immutable until it can be physically proven. While it may be true that the majority choose one or the other it still does not qualify as immutable yet as choice plays a role. A choice guided by a number of factors many, perhaps most, of which are unknown to this point. Race immutable. Gender immutable. Orientation not yet. But the jury certainly is still out.

    1. The immutable (or not) nature of sexual attraction aside. (we can argue all day long about whether people choose who they are attracted to or not attracted to and never come to agreement)

      What basis other than history do you give for disallowing two people of the same sex from entering a legal marriage contract under the laws of the United States?

  6. Mat

    History is not enough? Tradition is not something to be completely written off. But it is not something to be enslaved by at the same time.
    I actually am not arguing against it fully. But I do argue against claims of discrimination. I am in the midst of a discussion on a local newspapers blog regarding this issue. My position is that gays have not been discriminated against because of the immutable factor. See Washington Supreme Court 2006 decision. That hasn’t won me any friends here.
    And I also argue that it is a different institution deserving of a different code or title. Here is where tradition comes into play. Strongly in my opinion. You would call that seperate but equal. I would not.
    I also believe that both sides fear being forced, so to speak, to take the Romans road. But so far no one has been able to figure that one out here.
    Ultimately putting marriage in the hands of the church would resolve much. Then due to sep of church and state the state could wash it’s hands of the matter.

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