​​​​Freedom-of-Religion

Religious Freedom and the Constitution

Elder Dallin H. Oaks
[W]e all want to live together in happiness, harmony, and peace. To achieve that common goal, and for all contending parties to achieve their most important personal goals, we must learn and practice mutual respect for others whose beliefs, values, and behaviors differ from our own. As Justice Oliver Wendell Holmes observed, the Constitution “is made for people of fundamentally differing views.”   “The Boundary Between Church and State,” Part II of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015 (citing Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting)).

The inherent conflict between the precious religious freedom of the people and the legitimate regulatory responsibilities of the government is the central issue of religious freedom.  Speech on Religious Freedom given at BYU-Idaho on October 13, 2009 (Part IV).

I now speak to those for whom the ideal of nondiscrimination rivals or exceeds religious freedom….To those of this persuasion, I say please respect the laws that provide unique protections for believers and religious institutions. Most notable is the uniquely positioned First Amendment in the Bill of Rights, which singles out the “free exercise” of religion for special protection, along with free speech, free press, and freedom of assembly. The favored constitutional treatment of religion, speech, press, and assembly is based on their paramount significance in the founding of our nation and the necessity of protecting them to perpetuate all of Americans’ freedoms. As a result, actions amounting to expression are given unique protections in our law. Similarly, religion has an honored and uniquely favored place in our public life. The First Amendment framers’ guarantee of “free exercise of religion” rather than just “freedom of conscience” shows an intent to give unique protections to actions in accordance with religious belief.  Remarks at Claremont Graduate University Religious Freedom Conference, Part IV, March 25, 2016.

[U]nless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious action than to other kinds of action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.  Speech on Religious Freedom given at BYU-Idaho on October 13, 2009 (Part IV).

The “free exercise” of religion obviously involves both (1) the right to choose religious beliefs and affiliations and (2) the right to “exercise” or practice those beliefs without government interference. However, in a nation with citizens of many different religious beliefs, the right of each to act upon his or her religious beliefs must be qualified by the government’s responsibility to further compelling government interests, such as the health and safety of all. Otherwise, for example, the government could not protect its citizens’ persons or properties from neighbors whose religious principles involved practices that threatened the health or personal security of others. Lawmakers and judges have wrestled with this tension for many years, so we in the United States have considerable experience in working out the necessary accommodations.  “Challenges to Religious Freedom,” Address at the Argentina Council for Foreign Relations (CARI) April 23, 2015 (Part II); see also “Strengthening the Free Exercise of Religion,” Part I of Speech, May 16, 2013.

The free exercise of religion covers most public actions, but it is subject to qualifications necessary to accommodate the beliefs and practices of others. Laws can prohibit behavior that is generally recognized as wrong or unacceptable, like sexual exploitation, violence, or terrorist behavior, even when done by extremists in the name of religion. Less grievous behaviors, even though unacceptable to some believers, may simply need to be endured if legalized by what a Book of Mormon prophet called “the voice of the people” (Mosiah 29:26).  “Loving Others and Living With Differences” General Conference, October 2014 (Part IV). 

[W]e can set the right example in our family and Church teachings by acknowledging the blessings of the Lord in the establishment of this nation. To do this “in wisdom and order” we should not seem to deny that this nation includes and is blessed by citizens of Jewish, Muslim, atheist and other non-Christian persuasions. But we should speak truthfully of the fact that this nation was founded by persons and leaders who were predominantly Christians and who embodied the principles of their faith in the constitution, laws and culture of this nation.  “Witnesses of God,” BYU-Idaho Devotional February 25, 2014 (Part III.B).

Churches should stand on at least as strong a footing as any other entity when they enter the public square to participate in public policy debates.  News Conference on Religious Freedom and Nondiscrimination, January 27, 2015

The precious constitutional right of free speech does not exclude any individual or group, and a society is only truly free when it respects freedom of religious exercise, conscience and expression for everyone, including unpopular minorities.  News Conference on Religious Freedom and Nondiscrimination, January 27, 2015

Foremost among those fundamentals is the vital founding principle that the government should not endorse or establish a particular religion and that the government should guarantee the free exercise of religion by all of its citizens.  “Challenges to Religious Freedom,” Address at the Argentina Council for Foreign Relations (CARI) April 23, 2015 (Part I)

As we seek to preserve religious freedom, we must also be sensitive to its relationship to free speech. We see this relationship in the United States, where the forces that would constrain the freedom of religion are also attacking religious leaders’ rights to free speech in the exercise of their religious ministry. This is evident in the current efforts to narrow the definition of religious expression and to expand the so-called civil rights of “dignity,” “autonomy,” and “self-fulfillment” of persons offended by religious preaching. This is part of an alarming trajectory of events pointing toward constraining the freedom of religious speech by forcing it to give way to the “rights” of those offended by such speech.  “Challenges to Religious Freedom,” Address at the Argentina Council for Foreign Relations (CARI) April 23, 2015 (Part IV).

 ​[W]e must take notice of current theories asserting that religious speech is more dangerous and therefore less deserving of protection than other types of speech. Without detailing the obvious, I merely maintain that the constitutional freedom of religion is intended to be guaranteed—and is guaranteed—not only by the First Amendment’s free exercise clause, but is also protected by the companion guarantees of freedom of speech and freedom of assembly. The United States Supreme Court reaffirmed that principle in a near-unanimous 1981 case, declaring that “religious worship and discussion” are “forms of speech and association protected by the First Amendment.” Thus, these great guarantees are cumulative, strengthening and building upon one another.  “The Boundary Between Church and State,” Part IV.C of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015 (citing Widmar v. Vincent, 454 U.S. 263, 269 (1981)).

Of course there are extremist and even terrorist groups that attempt to use religious beliefs to justify illegal incitements or violent or destructive actions. Those excesses can and should be rejected by our understanding of the limits on any constitutional right. Similarly, we all understand the common-sense principle that the prospect of abuse of a constitutional right must not be used to veto that right. We resist that tendency for speech and press, and we must also resist it for religion.  “The Boundary Between Church and State,” Part IV.C of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015.

I…affirm the basic principle that religious leaders and religiously motivated persons should have at least the same privileges of speech and participation as any other persons or leaders when they enter the public square to participate in public policy debates.  “The Boundary Between Church and State,” Part IV.C of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015.

[] I say to my fellow believers that we should not assert the free exercise of religion to override every law and government action that could possibly be interpreted to infringe on institutional or personal religious freedom. As I have often said, the free exercise of religion obviously involves both the right to choose religious beliefs and affiliations and the right to exercise or practice those beliefs. But in a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be circumscribed by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens’ person or property from neighbors whose intentions include taking human life or stealing in circumstances purportedly rationalized by their religious beliefs.  “The Boundary Between Church and State,” Part IV.A of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015. 

Believers should also acknowledge the validity of constitutional laws. Even where they have challenged laws or practices on constitutional grounds, once those laws or practices have been sustained by the highest available authority, believers should acknowledge their validity and submit to them. It is better to try to live with an unjust law than to contribute to the anarchy that a young lawyer named Abraham Lincoln anticipated when he declared, “There is no grievance that is a fit object of redress by mob law.”  “The Boundary Between Church and State,” Part IV.A of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015 (citing Abraham Lincoln, “Address Before the Young Men's Lyceum of Springfield, Illinois” (Jan. 27, 1838), reprinted in Collected Works of Abraham Lincoln 113 (Roy P. Basler ed. 1953)). 

Foremost among those who must submit to the law are the public officials in the executive and judicial branches who enforce and interpret the laws. All such officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to override the law to further their personal beliefs—religious or otherwise. Government officers must exercise the defined responsibilities of their public offices according to the principles and within the limits of civil government.  Remarks at Claremont Graduate University Religious Freedom Conference, Part IV, March 25, 2016.

Constitutional duties, including respect for the vital principle of separation of powers, are fundamental to the rule of law. Neither the government nor its citizens should tolerate veto of a law (either its text or its operation) by officials not constitutionally authorized to veto it.  Remarks at Claremont Graduate University Religious Freedom Conference, Part IV, March 25, 2016.

Clear cases for the application of this principle are the public officials in the executive or judicial branch who enforce and interpret the laws. All such officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square. But when acting as public officials they are not free to apply personal convictions—religious or other—in place of the defined responsibilities of their public offices. All government officers should exercise their civil authority according to the principles and within the limits of civil government. A county clerk’s [2015] invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle. Far more significant violations of the rule of law and democratic self-government occur when governors or attorneys general refuse to enforce or defend a law they oppose on personal grounds—secular or religious. Constitutional duties, including respect for the vital principle of separation of powers, are fundamental to the rule of law. Government officials must not apply these duties selectively according to their personal preferences—whatever their source.  “The Boundary Between Church and State,” Part IV.A of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015. 

This insistence that the constitutional and legal duties of the office override the religious or other moral scruples of the office holder implies no compulsion on the office holder’s conscience. The operation of the government can continue when attorneys or other administrators delegate the performance of their duties and when judges disqualify themselves. Government operations can accommodate the conscience of individual officials, but neither the government nor its citizens should tolerate veto of a law (either its text or its operation) by officials not formally authorized to do so.  “The Boundary Between Church and State,” Part IV.A of transcript, Second Annual Sacramento Court/Clergy Conference, October 20, 2015.  

Elder Quentin L. Cook
In our increasingly unrighteous world, it is essential that values based on religious belief be part of the public discourse. Moral positions informed by a religious conscience must be accorded equal access to the public square. Under the constitutions of most countries, a religious conscience may not be given preference, but neither should it be disregarded.  “Let There Be Light!” Ensign, November 2010 (p. 29).

Natural law or even a belief that we are accountable to God is not in fashion in much of the legal world today. But the recognition that individual rights are part of the design of a loving Creator is part of both Catholic and Latter-day Saint theology. It is not government which has the disposition and power to grant these protections and rights—they are derived from our Creator. The preamble to the Magna Carta acknowledges the grace of God, and the document places the king not only below God but also below the law.  Notre Dame Sydney School of Law Religious Liberty Lecture, Sydney, Australia, May 27, 2015

People of faith must be at the forefront in protecting religious freedom—a freedom from which many other essential freedoms emanate. Freedom of religion and freedom of speech are both the heart and the foundation of representative democracy. Freedom to believe in private and to exercise belief and speech in the public square are essential to protecting inalienable rights.  Notre Dame Sydney School of Law Religious Liberty Lecture, Sydney, Australia, May 27, 2015.

Elder D. Todd Christofferson
A robust freedom is not merely what political philosophers have referred to as the “negative” freedom to be left alone, however important that may be. Rather, it is a much richer “positive” freedom—the freedom to live one’s religion or belief in a legal, political, and social environment that is tolerant, respectful, and accommodating of diverse beliefs.  “A Celebration of Religious Freedom,” Interfaith Address in São Paulo, Brazil, April 29, 2015

We use our freedom of religion and belief to establish our core convictions, without which all other human rights would be meaningless. How can we claim the freedom of speech without being able to say what we truly believe? How can we claim the freedom of assembly unless we can gather with others who share our ideals? How can we enjoy freedom of the press unless we can publicly print or post who we really are?  “A Celebration of Religious Freedom,” Interfaith Address in São Paulo, Brazil, April 29, 2015.

[R]eligious freedom strongly correlates with a host of positive economic, public health, and civic benefits.  “A Celebration of Religious Freedom,” Interfaith Address in São Paulo, Brazil, April 29, 2015 (referencing See Brian J. Grim, Greg Clark, and Robert Edward Snyder, “Is Religious Freedom Good for Business? A Conceptual and Empirical Analysis,” Interdisciplinary Journal of Research on Religion, vol. 10 (2014), 4–6; Paul A. Marshall, “The Range of Religious Freedom,” in Paul A. Marshall, ed., Religious Freedom in the World (2008), 1–11.)

In general, religious individuals have better family lives, stronger marriages, less substance abuse and crime, higher educational levels, a greater willingness to volunteer and donate to charities, better work habits, longer lives, better health, greater income, and higher levels of well-being and happiness.[9] Clearly, religious freedom and the practice of religion strengthen society.  “A Celebration of Religious Freedom,” Interfaith Address in São Paulo, Brazil, April 29, 2015 (referencing Patrick F. Fagan, “Why Religion Matters Even More: The Impact of Religious Practice on Social Stability,” Backgrounder, no. 1992 (Heritage Foundation, Dec. 18, 2006), 1–19; Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (2012), 443–92.)

Our scripture says: “No government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience.” Governments may “restrain crime, but never control conscience; [they] should punish guilt, but never suppress the freedom of the soul."  Doctrine and Covenants 134:2, 4.  “A Celebration of Religious Freedom,” Interfaith Address in São Paulo, Brazil, April 29, 2015.