Equal Protection vs. Freedom of Religion

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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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About The Pluralist Advocate

The Pluralist Advocate started out this life in a conservative Military oriented community, and he later moved to that bastion of liberal activism called the San Francisco Bay Area. Having lived both ends of the political spectrum he has a unique understanding of both sides of most issues. He was also very religious growing up, serving as a studying the Christian scriptures and even spending some time as a foreign missionary. He used to think he had all the answers to life's greatest questions, but the more he looks around the world, the more he finds a wide variety of different values that work for different people. This blog is an exploration of thought and consideration from as many points of view as can be held at one time. He now holds the position that truth is found in many different disciplines. You may know the Pluralist Advocate around the web and twitter as brihartwell, or his given name of Brian Hartwell. He hates to be narrowly defined by one title, so as you read these musings you may find things you identify with, and others that you despise. That is good. Please share your reactions to the thoughts here and we will all grow together.