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LDS Elder Dallin Oaks On The Current And Future State Of Religious Liberty

Saturday, February 5, 2011
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HH: I’m now pleased to welcome Elder Dallin Oaks of the Church of Jesus Christ of Latter Day Saints, a member of the Quorum of the Twelve. They gave you a standing O, didn’t they, Elder Oaks? And therefore, you had to stay and acknowledge it.

DO: It was a warm audience, and many people who wanted to press the flesh.

HH: Well, I knew you were never going to get out of there in time, so I was not at all flapped. One of the state presidents, who is a good friend of mine, Dan Rasmussen was here, and I was telling him, he left at the same time that the speech ended, and his son was an intern for us for a while, and I said they’ll never be here. I’m not worried, so I had a couple of stories ready to go. Great speech, though.

DO: Oh, thank you.

HH: I have it outlined, and I’ve got lots to talk to you about for the next two hours. But I want to first of all pass along a hello from my friend Alan Sears, the president of the Alliance Defense Fund, who says he goes back with you for a couple of decades. And I told him you would be speaking on religious liberty today.

DO: Good, and I sent him a copy of the talk.

HH: Already?

DO: Already.

HH: OH, that’s very…so in terms of the preparation time for this, and I’m going to come back to this, how long did it take to put this together, Elder Oaks?

DO: Well, it’s a subject I’ve been thinking about for twenty five years. And I’ve given several talks about the subject. But the formal preparation, probably two and a half months, a major fraction of time. What I gave there is the fourteenth draft.

HH: Well, I was blown away when I first read it that an apostle, I know how busy you guys are because of my friendship with Elder Maxwell. It’s a piece of legal scholarship, and I just don’t think of you folks having the opportunity or the time to dig in and do legal scholarship that way.

DO: It’s true that we are very busy. And if this weren’t such an important subject, I could never have justified spending the time that I’ve spent on it, because I did spend a lot of time. But I had some good help from a young Harvard Law graduate that I met when I gave a lecture at Harvard a little less than a year ago. And he volunteered to do some research for me.

HH: That always helps.

DO: And that helped a lot.

– – – –

HH: I want to do a little backup here, because we got a little bit of a rocky, interrupted start. There was a speech delivered by Elder Oaks at Chapman University Law School today on religious liberty. It’s very important. It is posted over at http://newsroom.lds.org, and we were very pleased to host him at the law school today. And I want to contrast our talk today, Elder Oaks. In 1996, I sat down with your great friend, and he became my friend, Elder Neil Maxwell over in the Beehive House to interview him for PBS, and spent a lot of time with him. I began at the start of it by saying you know, we don’t agree on anything theologically, but I’m going to ask you to explain what you believe to the national audience. By contrast, you and I agree about everything on the law. And so this is not about theology today. This was about the law. But I want to still do a little biography like I did on the PBS show with Elder Maxwell, so that people know about you a little bit, and know of what you come. You’re originally, you’re a son of Utah.

DO: Yes.

HH: And BYU undergrad?

DO: Yes.

HH: You lost your father at a very young age?

DO: Yes.

HH: And tell people about the circumstances, and how you were raised then.

DO: We were living in Idaho, Twin Falls, Idaho, and my father was a physician. He contracted tuberculosis from a patient he was treating. He was an eye, ears, nose and throat man. And he was run down physically, and it took his life after a year. This was 1940, before they have the methods we have now for treating tuberculosis. My widowed mother very soon had a nervous breakdown, and I went to live with grandparents. So I was kind of orphaned at age 8, lived with loving grandparents for a couple of years, with my younger brother and younger sister. And Mother recovered her health, and we went to Vernal, Utah, to live where she taught. And then as I approached college years, she moved us to Provo, where she was employed by the school district in Provo, Utah. And I graduated from high school in Provo and went on to BYU.

HH: And you studied accounting at BYU, is that correct?

DO: I did. I majored in accounting. I didn’t know what I wanted to do as my life’s work. And accounting, I had a taste for that, and it allowed me to complete a major. As I was completing the major, I got interested in law. I had no lawyers in my family. My father-in-law, I was married by that time, it was during the Korean War, he encouraged me to study law, and I got interested in it, and went on to the University of Chicago.

HH: Now I have to give people the short précis here who may not be lawyers. The University of Chicago is among the top, top law schools in the United States. You were the editor-in-chief of the Law Review. And I correct?

DO: I was.

HH: From the editor-in-chief of the Law Review at the University of Chicago, you went off to clerk for Chief Justice Earl Warren on the United States Supreme Court.

DO: Yes.

HH: I’m going to come back to that. Then to Kirkland & Ellis, which is what all the clerks do, big firm experience, and then to teaching at the University of Chicago Law School.

DO: Yes, Dean Edward Levy, later the attorney general of the United States, expressed interest in me as a teacher. And after I’d had three plus years of law practice, I just got tired of working on things that I didn’t necessarily believe in, and I thought it would be more satisfying for me, more meaningful in eternal terms if I spent my life putting ideas in young heads.

HH: That’s remarkable. And a scholarly bent. Dean Howe, Dean Scott Howe at Chapman Law School today told me something I didn’t know, and I’d done pretty good research, that your Exclusionary Doctrine article is among the most influential ever written on it. And then I learned today that in the 75 years of the University of Chicago Law Review, it was for a time the most cited article until you were nudged aside by Justice Scalia’s article.

DO: That’s what they told me, and I was astonished, because during the 26 years I’ve served in the Quorum of the Twelve, I’ve not had anything to do with law except calling upon my legal training as a matter of analysis, and so on. So I’ve been way out of the law. And to find out that that article was among the most cited was absolutely astonishing.

HH: Well, from BYU, or the University of Chicago Law School where you were the acting dean for a time, you were called to be the president of Brigham Young University.

DO: Yes.

HH: How long did you do that for?

DO: I did that nine years exactly. And I thought I should have been released after six or seven years, but I was loyal to the leaders of the church, and after sending them a letter six or seven years into that service, and saying I think you ought to get a new president, I feel like I’ve lost my edge, they said we’ll decide when you step down. And they made that decision after nine years.

HH: And then you went off to be a justice on the Utah Supreme Court.

DO: Yes, there happened to be a vacancy, and I just had a taste for the quiet, scholarly, contemplative life of a supreme court justice, and I was grateful that the governor, who was a Democrat, appointed me. I was known as a Republican. And he had a Republican legislature, and he told me later that he thought it would be a good thing to appoint a prominent Republican. It would help him raise judicial salaries, a subject on which I was in total harmony with the governor.

HH: (laughing) And after a few years on that court, you were asked to join the Quorum of the Twelve. Would you explain to people who are not familiar with the Church of Jesus Christ of Latter Day Saints what the Quorum of the Twelve is?

DO: The Quorum of the Twelve is a lifetime calling as an apostle of the Lord Jesus Christ. We serve for life, and that is the quorum from which the president of the church is chosen by seniority. And so one becoming an apostle is a potential future president of the church. He’s a member of the second quorum of the church. The first quorum of the church is the first presidency, the three presidents who preside over the church. When the president of the church dies, the senior apostle in point of service becomes president of the church.

HH: It must be a vantage point from which, with a worldwide congregation of what, 14 million roughly?

DO: Yes.

HH: 14 million Mormons? You were very aware of religious liberty around the world…

DO: Yes.

HH: …because you know where your people are persecuted, where your people cannot evangelize, where your people are basically driven out.

DO: Exactly.

HH: Is the quality of religious liberty in the world on the rise or on the fall?

DO: I think it’s on the fall, I’m sorry to say. We have more religious liberty in the United States than in other places. But on the whole, including the United States, I think it’s on the fall.

HH: Okay, now before we get to the break, and I’m going to come back and talk about in the United States, a couple of words about Earl Warren. He is known as kind of a, he’s not a popular figure with people who listen to this radio show. But that’s by reputation. They forget he was the great progressive governor of California, and led the Court for so long. Tell people a little bit about Earl Warren.

DO: Earl Warren was a great human being, and I loved him as a person, and honored him as a great family man, a very moral man, a very wise man. I think he would have made one of the great presidents of the United States. I regret that he was not the chief executive officer of the United States, like he was of California, where he was elected on both parties several times.

HH: Yup.

DO: He was popular with Democrats as well as Republicans. But as a judge, I found myself in disagreement with his votes, and his judicial philosophy, about half of the time. And yet, as a lawyer, it was my responsibility to serve my client professionally, and I was loyal to him, and did the best I could for him. But he was the one who was appointed by the President, and confirmed by the Senate, not his law clerks, so we served him. But I had the interesting experience of working for a man whom I adored and admired as a person, and often disagreed with as a judge.

HH: But his legacy is so riven with controversy. Were you aware of it at the time? We’ve got 30 seconds, Elder Oaks.

DO: Yes, I was aware of it. I wasn’t completely aware of it, but where I differed with him is where I saw him doing what I thought a judge should not do. He ought to leave it to the legislature.

HH: Legislate. I’ll be right back with Dallin Oaks.

– – – –

HH: Your remarks today, Elder Oaks, drew on Catholic, Evangelical, Christian, Jewish and Mormon writers. You said at the beginning it had absolutely no unique Mormon doctrine in it, and you quote, among other people, I was, the breadth of who you relied upon, Gertrude Himmelfarb, Tim Keller, Cardinal Francis George, Alan Carson, and agnostic Melanie Phillips. And you even quoted from Professor Guerra, the anti-1st Amendment fellow.

DO: And I quoted from Hugh Hewitt.

HH: That I was going to leave out, but I’m glad about that.

DO: (laughing)

HH: So you clearly, you must keep a file on this debate. This must be a file in your office.

DO: Actually, I do. I keep tear sheets. I’ve been interested in religious freedom for a long time, and I feel that as an apostle of the Lord Jesus Christ, I have a responsibility to be concerned about something I have some professional qualifications in that is fundamental for Christians, Jews, Muslims, people of any religious faith. And when I see religious liberty being pushed aside, I am concerned, and I try to keep track of it not as a legal scholar, but as an interested former legal scholar.

HH: Well, you’re being modest, because one of the interesting parts of the text in the speech is you gave a similar talk at DePaul University in 1985. And so you have something to measure your views against.

DO: Yes, and I made some gloomy predictions at that time, which I’m sorry to report turned out to be accurate.

HH: That’s what…I haven’t looked up the DePaul original article yet, but it was five years before a very famous case, Employment Division V. Smith, which I actually lectured at BYU Law School once a few years ago, because it was such a disappointment to me. Would you set up to people basically what you understood the Free Exercise Clause to mean, and what happened in Employment Division V. Smith?

DO: Well, the free exercise of religion is the paramount civil liberty in terms of priority and placement in the United States Constitution. And religion has always been in a sanctuary in the sense that it had a pedestal higher than other legal rights. And in Employment Division V. Smith, the United States Supreme Court dragged religion out of the sanctuary, and said you’re in effect, you don’t have any more free speech rights than people generally. You don’t have the right to override state laws any more than any other person does. And it just deemphasized religion very significantly.

HH: Now the United States Congress has fought back, and in your talk you note that more than half of the states have fought back against Employment Division V. Smith.

DO: Yes.

HH: That’s very good. I’m curious, though, I’m a great admirer of Justice Scalia, great admirer, and in correspondence with some of his kids who are both, are very deep thinkers on these subjects. But I wonder what do you think was on his mind on that? Do you think he just looked at a billion religions and said we cannot make sense of this otherwise?

DO: I’m not sure. He and I both served on the faculty at the University of Chicago Law School at different times. But I have known him casually through the years. I’ve talked to him, and I’ve been puzzled by that same thing. I wondered what a religious, Catholic, conservative man like he would have been thinking of to do what he did. And I assume he had good reasons for it, and he had some reasoning in the judicial opinion that was not persuasive to me or to many others. But I assume that behind that, he had a broader strategy. He’s not prejudiced against religion. I’m just still puzzled by it.

HH: Well, even beginning before that, for twenty years since, it has been a tidal wave assault on free exercise. And you captured that today, and it’s now, I hope it’s cresting. Maybe it isn’t cresting. Maybe it’s still building.

DO: I have the same hope that it’s cresting, and will soon recede.

HH: Yeah, I mentioned earlier Alan Sears. I spend at least a segment a week with someone from the Alliance Defense Fund talking about various assaults on religious exercise. And something I hadn’t noticed, though, and it has never come up in our conversations, is the language the president uses has been different in times in discussing religious freedom.

DO: Yes, I took notice in my talk of the fact that he began about a year ago. He referred to freedom of worship, which is a much smaller freedom than freedom to exercise religion. And I think there was an outcry. The Becket Fund for Religious Liberty raised a voice against that. And more recently, the President has been referring to freedom to practice religion, which is a relief to me.

HH: Very subtle. We’re going to come back to that and many other topics covered today, including where do we see this assault that we’re talking about.

– – – –

HH: And the premise of today’s address at Chapman Law School by Elder Oaks is that there is a sustained assault on religious believers in the public square. And he put forward first a premise I want to begin with, Elder Oaks, which is that, from your speech, “Religious teachings and religious organizations are valuable and important to society.” Now it’s odd that we have to make this argument, but it’s necessary to do so. What evidence do you offer up for that?

DO: Well, it is odd that we have to offer evidence, because this has been assumed for over a hundred and fifty years, and now it’s being challenged. The evidence offered for it is really fourfold. We can begin with the formation of the United States Constitution. The founders said that that Constitution presupposed a moral and religious people, and it would be inadequate to the government of any other.

HH: Yup.

DO: Then we look at great changes that have been made in our society, great moral-based changes that are based on religious teachings, and that were furthered by religious ministers. The Emancipation Proclamation on this side of the Atlantic, the doing away with the slave trade on the British side of the Atlantic. Then there’s the matter of honesty. We’re full of all kinds of devices in our society. We’re proud of our technology. But finally, that technology is going to be used by human beings. And unless we have a basic honesty that is taught by religion, predominantly in our society, then those devices are going to be used by ill rather than for good, and there are plenty of advantages in our society of the fact that we get dishonest people manipulating, in one way or another. We rely on religion. And even some atheists have conceded that our fundamental values are based on religious teachings. And when religion is weakened, it weakens the whole society, believers and non-believers.

HH: I thought it was a crucial part. Of course, you quote Adams. And very early in this speech, John Adams wrote, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for our moral and religious people. It is wholly inadequate to the government than any other.” Then you go on to say, and I’m quoting you now, Elder Oaks, “I submit that religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of religion in our public life without seriously jeopardizing our freedom.” Do you believe for a moment that elite opinion makers will even take that argument seriously?

DO: No, I don’t believe elite opinion makers will take that argument seriously, but I’m trying to speak over their elevated heads to the people of the United States. And I think there are a lot of great people out there who’ll take that seriously. And some of them are affiliated Protestants, some Catholics, some Mormons, some Muslims, and a lot of people that aren’t affiliates with any religion, but believe down in their hearts that there’s such a thing as right and wrong, and they’re going to take it seriously.

HH: You know, a week from Sunday, I’m appearing with my friend, Dennis Prager, very, very devout Jewish man and a great scholar. It’s a program we jokingly call Ask A Jew. And Dennis had an argument with Alan Dershowitz once. He said the world is full of two different kinds of people. Everybody believes in God. But one kind of people don’t believe that God wrote anything down, and the other kind of people think that He did, and that He wanted it to be believed. That’s really…

DO: (laughing)

HH: Because everyone, I think you admitted today, most people will go with the idea that there is at least something superintending the universe, but they’re not willing to be bound by a higher moral law.

DO: It’s a good statement.

HH: In terms of the Hitchens-Dawkins assault, are you surprised? You’ve been in the Quorum of the Twelve for more than 25 years, so you’ve seen a lot of stuff from the perspective of someone helping to superintend a worldwide religion. Are you surprised at the ferocity of the argument against religion? A lot of people have been atheists forever.

DO: Yes.

HH: But they haven’t been actively opposed to the religious project.

DO: I’ve been surprised at the way they’ve come out of the corner aggressively attacking religion, and attacking religious-based values and assumptions. It has surprised me.

HH: In terms of their motivation, why do they, as opposed to simply saying live and let live, I’m not going to believe in anything, why do you think they feel the need to strike it down, or to damage, or to cause it eclipse?

DO: I don’t know. It’s possible that they are academics that need a publicity fix. I don’t know.

HH: Well, Christopher is selling books. Yeah, he’s been on the show a number of times, and he says thank God it’s a bestseller, which is a bit ironic. You also say in the speech organized religion is surely on the decline. Now I was a little surprised by that, because Mormon expansion has been quite good, Catholic expansion in parts of the world has been quite good, Evangelical expansion, non-denominational variety quite good, though the main lines have gone down. Why do you write that?

DO: I write that just in reliance on studies I’ve read that show that the number of people affiliated with a particularly denomination in the United States has been declining for some years.

HH: Can that turn around?

DO: Yes, I think it can. I don’t predict whether it will or not, but it’s a trend that needs to be turned around. Why? Because I’m not at all persuaded that people who don’t have an affiliation can pass their basic faith in God onto the next generation. In other words, children may need to go to Sunday school or to synagogue in order to pick up what their parents take for granted, basic belief in God. So if you’re not taking them to Sunday school or to synagogue, or whatever it is for your religious faith, I wonder if it can survive?

HH: Now in terms of the number of, have you seen the studies on parents who do take their kids? Is that declining as well as simple total affiliation?

DO: I don’t recall those figures.

HH: Okay, I wouldn’t be surprised if that’s plummeting even more quickly than affiliation.

DO: I suppose it is.

HH: Yeah, because the culture of youth is not really inclined to spend Sunday morning in a Sunday school.

DO: No, not at all. They’d rather go fishing with dad.

HH: Or to soccer practice.

– – – –

HH: But I’m going to take just a little break here, because I discovered during the break you’re a radio guy.

DO: Well, I was once.

HH: Well, tell people about that. That’s why you’re so mellifluous in your…

DO: Well, I got interested in the technical part of radio when I was…I had my first job was sweeping out a radio repair shop for ten cents an hour in Vernal, Utah.

HH: That’s what we’re paying our producer now, Duane. He gets about that.

DO: (laughing) But anyway, I got interested, and the owner of the shop showed me how to test tubes, and I bought a fundamental book called Elements Of Radio by Nilsen and Hartung, and I started to read it. And I was about twelve or thirteen years old, and I just began to read it. And finally, I got an appetite to pass the Federal Communications Commission radio-telephone operators license. The FCC required a radio engineer at the transmitter site all the time that a station was on the air. And I thought if I could pass that exam, I could get a job. And I was about fifteen, and I got on the bus and went to Denver, and passed the exam, and I became a certified radio operator or radio engineer, and I had an instant job. And they wanted me to announce, but my voice hadn’t finished changing. So I couldn’t announce. But after, in due course of time, I became what they called a combination man, the man who could be at the transmitter, spin the records, read the news off the tickertape, and interview people and so on, and go back in the back room where the transmitter was every 30 minutes and sign the log. And for that, I got paid, initially, 75 cents and hour, and the 90 cents an hour. And finally, when I got married, they raised me to $1.10.

HH: Wage inflation’s a terrible thing. Now you were also the chairman of the Public Broadcasting System.

DO: Oh, that came along after I was president of Brigham Young University. PBS had a board of 35, and different licensees were elected to the board, and I went on the board, and immediately had a close friendship with Newton Minow, who was chairman of the board of 35, that made policy for public television. And he got me to be his vice chairman. And then when he stepped down, he nominated me to be chairman. And I served as a director of PBS for eight years, and as chairman of the board for PBS for five years.

HH: what’s interesting, and we’ll come back and talk about this next hour, that must have given you appreciation for the 1st Amendment’s free expression clauses, as well as the religion clauses.

DO: It did. Oh, of course. And later, when I served on the Utah Supreme Court, we had some key decisions on the rights of journalists versus the rights of criminal defendants. We had to balance the 1st Amendment. So I’ve got a long term interest, both as a consumer and as a judge in the 1st Amendment.

HH: Every broadcaster knows what it’s like to be free to be able to say whatever you want, and it’s a wonderful thing. We’re going to come back and talk about whether you’re free to believe and act on that belief in the United States in 2011, and what religious freedom looks like in the next decade.

– – – –

HH: Elder Oaks served for four years as well as a justice of the Utah Supreme Court, and was always on the short list when Jerry Ford and Ronald Reagan were looking at Supreme Court nominees, your name was always tossed about. That must have been odd, Elder Oaks, to see your name as being someone considered to go up to the Supremes.

DO: It was odd, but I never counted on it. That is something that is like being struck by lightning. It’s a significant event if it happens, but you shouldn’t let it impede your normal life.

HH: When you see the process that we’re going through now, and obviously I was very pleased with Chief Justice Roberts’ elevation, Justice Alito’s elevation. I’m waiting with great interest to see how Justice Sotomayor and Justice Kagan rule on 1st Amendment. What do you think the Court is doing? Do you think they’re heading towards clarity on the Free Exercise clause? Or maybe revisiting Smith?

DO: I’m not sure. I hope so, but I don’t have much faith in that. But frankly, with my duties as an apostle, I don’t follow the law very much. I revisit it to give a talk like I’ve given, but that doesn’t give me a sense of continuity, and an ability to predict outcomes.

HH: All right, you were, you’ve been obviously in the leadership of the church through a very difficult time in the United States politically, not just for Mormons, but for anyone who spoke out for the defense of marriage in California and elsewhere. Threats of violence, hostility, paybacks, economic blackmail, it was tough to stand for Prop. 8. Do you think the church has emerged stronger for that, and that marriage has emerged stronger for it? Or what…

DO: I’m not sure whether marriage has emerged stronger for it. That remains to be seen. But I am clear that our church emerged stronger for it. Our members in California were valiant in doing what they chose to do in pursuit of what they believed in. And as leadership in the church, we didn’t send money down to California. We simply urged our local members to make contributions of time and money in what we saw to be a very important contest. And we were very proud of our church members in California, the second largest LDS population in the United States, second only to Utah, is in California. We’re very proud of what our people did here. I have a grandson and a granddaughter who were very active in that effort, and they kept us posted. We have a personal interest in it, but I think our church members and our church is stronger today because of that contest.

HH: Were you surprised by the hostility? I mean, there is, it’s a serious debate. It’s going to rage for many, many more years to come. The issue is in doubt, even though every time it goes to the ballot, it doesn’t seem to be in doubt with a majority of Americans, and sometimes supermajorities. But are you surprised by the ferocity, the anger, the violence on the other side?

DO: I was astonished by it. We live in a democratic society, and we have a lot of contests that are decided by votes. And there isn’t a lot of precedent in this country for the losing side taking punitive action against the winning side in political controversies. And so I was very surprised at the backlash, or the punitive actions that were taken – members fired from jobs, people blacklisted, graffiti put in the side of our worship houses, and in one case a conspiracy to keep people from getting to an LDS temple by making an artificial traffic jam. It was really surprising that people would take that kind of action. It’s un-American.

HH: Do you think it reflects the increasing hostility that you referred to today in the culture at large that people take liberty like that? And to a certain extent, there’s a licensing of hostility to religious belief that’s occurred in elite circles that manifests itself further down the public opinion chain in those kind of actions. Do you connect those two?

DO: I’m not sure, but I do see an increase in the divisiveness in our society, and it comes out in the immigration debates that we’re seeing right now. And we’re just less civil as a society. I don’t think what happened was what I would call anti-Mormonism. I think it was a backlash against those that prevailed in a political contest, and the Mormons were an easier target.

HH: Because you could find them much more easily, and they were much more bold in their political statement here.

DO: Yes, sure.

HH: Do you think, you know, you went onto the Utah Supreme Court. I don’t know. Do they have confirmation process over there? Or did you have to go through the State Senate of Utah or anything like that?

DO: Yes, the State Senate confirmed me. That was a pretty easy process.

HH: After what we’ve seen in the last few years, and the assault on religious liberty, and especially after William Pryor, a devout Roman Catholic, was almost defeated for the 11th Circuit nomination that he had, do you think it’s going to be possible for devout religious believers to make it to the Supreme Court in the way that it would never have even been reflected upon, or to circuit courts of appeal going forward?

DO: Well, I would hope so. I’m not sure. I can’t predict it. I’ve a personal interest in that, in that Robert Bork, whose case began this whole unseemly system, that actually his name has introduced a new verb into the English language, to be Borked…

HH: Yup.

DO: He and I were young associates together in Kirkland & Ellis, and the closest of friends. And when I left Kirkland & Ellis to go to, I mean, when I left, yes, Kirkland & Ellis to go to the University of Chicago, he was so dissatisfied that he left the firm and went to Yale. And the rest is history. But I had a very painful time as I looked at the confirmation process, and what was being done with him. And I even went and testified before the Senate committee on some experiences he and I had had together that showed he was not what he was being painted to be. And so I participated in the confirmation process. I’ve seen how ugly it can get. And I just pray that both parties will take a step back into the realm of civility and common sense.

HH: Article VI seems to me to be crumbling. This is the prohibition of religious test for office in the United States.

DO: Yes.

HH: It’s not often…it’s the third religion clause that no one ever talks about, because we’ve always assumed it would be honored. But I think it’s eroding. And part of my book about Mitt Romney in 2008 was driven by the concern that a religious test was popping up. Do you see that in other places?

DO: Yes, and I’ll tell you how I look at that. I think a religious test for public office is perfectly appropriate if it is in my heart and mind. I’m not going to vote for an X or a Y, or I’m going to vote for him or her because they’re this or that. The Constitution doesn’t forbid that. It forbids a formal religious test for public office. But what disappoints me is when religious leaders come out and advocate to their members don’t vote against so and so because he or she is a this or a that. And I think that is so self-destructive for religious leaders to urge a religious test for public office. It’s going to turn around and bite them, and bite them hard. And that’s the part of it that surprises me.

HH: Yeah, in fact, your speech today, it concludes, and I’m going to make sure I get to it now by reading this, “The religious community,” you write, “must unite to be sure we are not coerced or deterred into silence by kinds of intimidation or threatening rhetoric that are being experienced. Whether or not such actions are anti-religious, they are surely anti-democratic, and should be condemned by all who are interested in democratic government. There should be room for all good faith views in the public square, be they secular, religious, or a mixture of the two.” And you quote Ben Franklin, fairly…we’re all going to hang separately, or we’re going to hang together. And so you’re appealing to every religious person across the spectrum.

DO: I surely am – Christian and non-Christian. And I’m also appealing to believers in God that aren’t affiliated with, formally affiliated with a religious group, and I’m appealing to people that believe in basic morality, though they do not believe in God.

HH: To step forward and defends the rights…

DO: Defend the right that so many in our society rely upon to perform the function that is so important in our society.

HH: Cardinal Francis George came to Brigham Young University, a great Roman Catholic leader in the United States. Same message?

DO: Yes.

HH: Well received?

DO: Oh, yes. Very well received. And it’s probably the first time a Catholic cardinal has spoken to an audience of 15,000 Mormons, certainly at Brigham Young University. And his message was Mormons and Catholics ought to unite to help protect religious freedom. My message today is yes, and there ought to be Evangelical Christians and Jews and Muslims and other people in that same effort.

– – – –

HH: Elder Oaks, in your speech today, you did not leave it to conjecture. You actually ran through a number of stories, a number of incidents in the United States about threats to religious freedom. I want to read them very quickly. In New Mexico, the state’s Human Rights Commission held that a photographer who had declined on religious grounds to photograph a same sex commitment ceremony had engaged in impermissible conduct and must pay over $6,000 dollars attorneys fees to the same sex couple. A state judge upheld the order to pay. In New Jersey, a United Methodist church was investigated and penalized under state anti-discrimination law for denying same sex couple’s access to a church-owned pavilion for their civil union ceremony. A federal court refused to give relief from those state penalties. Professors at state universities in Illinois and Wisconsin were fired or disciplined for expressing personal convictions that homosexual behavior is sinful. Candidates for Master’s degrees in counseling, in Georgia and Michigan universities were penalized or dismissed from their programs for their religious views about the wrongfulness of homosexual relations. A Los Angeles policeman claimed he was demoted after he spoke against the wrongfulness of homosexual conduct in church where he is a lay pastor. The Catholic Church has difficulties with adoption services, and the Boy Scouts’ challenges in various locations are too well known to require further comment. What’s interesting, you went on to make the argument that courts are advancing a de-legitimization, a devaluing of religious freedom, and a new valuing of a sexual orientation liberty interest which is simply not in the courts’ cases or in the Constitution. But it’s not subtle. It’s pretty serious and pretty far advanced.

DO: Exactly.

HH: Do you have, does the LDS church have a legal arm like the Alliance Defense Fund that goes out and argues these cases? Or do you leave it to private sector organizations to do it?

DO: The latter. We leave it to the Alliance Defense Fund, other organizations. We do not go in and litigate these issues. We’re in court when we’re a party, and that’s pretty rare. So we depend on the private sector to take up the arms, and argue the positions on this issue that are of interest to us.

HH: Did you have a chance, you referenced Perry V. Schwarzenegger in your speech today. Have you had a chance to really read…that’s a radically district court decision, because it says it’s not rational to believe in religious fundamental principles.

DO: I did not read it. I read fragments, and I read summaries prepared by people I trust. But my duties in the church are not to follow all the legal matters that are around. They’re to preach Jesus Christ and Him crucified. And I try not to get myself in a lather by reading something that is of that character, because it interferes with my ability to do what I am called to do.

HH: How much are you, you know, I read a lot of Benedict. And Benedict returns to this theme quite a lot about the emptying of the churches in Europe, the destruction of the faith in Europe, and the need to rekindle religious observance, formal religious observance. How much of this is occupying your though time as a religious leader, as opposed to a legal scholar?

DO: Quite a bit. I’m concerned about the broad trends, I’m concerned about the freedom to preach. I’m trying to look into the future a decade or more, and see where we’re headed. Part of my duty is to be a watchman on the tower, to get above the fray and look out and see what’s happening. And I’ve been concerned about the birth rates in Europe, the failure of Western societies to reproduce themselves, and therefore the loss of those essential cultures. And I’ve been very heartened by the Pope’s pleas to rejuvenate religion in Europe. And I see the need for it, and I see the need for it in the United States, and in Canada. Canada has been much more aggressive in going against ministers who preach unpopular things about sin.

HH: I think my friend Jim Dobson was fined there. I’m not sure. I have to find out. I think a Focus On The Family broadcast was actually fined there. All right, last question, and we’ve got lots of phone calls, and we’ll do it after the break. I have spent a lot of time on this program with Christopher Hitchens, with Richard Dawkins, and then with a couple of great British novelists, Ken Follett and Bernard Cornwell. All four of them are atheists. All were born between 1941 and 1949, all educated in the British system in that decade. Is there something, was it the War that destroyed people’s ability to believe in Europe?

DO: I don’t know, but I do know that the churches in England are essentially empty.

HH: They’re dead, yeah.

DO: And what the cause and effect relationships are, I don’t know.

HH: Do you think that would be vital to the revitalization of religious belief, figuring out whether or not it was sort of witnessing evil unleashed?

DO: Yes, I think it would be important. In our part, we, through our missionaries in the British Isles, found many people who are very interested in religion. And we have built in the years since World War II a church of over a hundred thousand members, very vital in the British Isles. So the heart is still there in the British people. Why other churches are empty when ours are thriving, I don’t know.

HH: Eastern Europe, after the wall came down, how did the Church of Jesus Christ of Latter Day Saints do there, because that has been a very vibrant Catholic and Evangelical missionary field.

DO: Yes, we had a season of extraordinary interest in the restored church of Jesus Christ, which we are. And many, many people came in, in those Eastern countries, and in the Soviet Union, where we soon had, in the Soviet Union, thousands of members, and Eastern Europe, varying numbers, depending on the nation. And that, the rapid growth has leveled off some as the initial novelty of freedom receded, but we continue to make good process in those countries, and are establishing now a second generation church.

HH: You write, I want to make sure I say this, because we’re going to go to calls after the bottom. You are not calling for the beginning again of a moral majority. You are saying this is not partisan, this has not got anything to do with politics. It has to do with a Constitutional approach to religious liberty in the United States. I want to make sure people understood you are not calling for people rallying behind a particularly partisan flag.

DO: Exactly, exactly. Not at all. And I just say that we all have a common interest, whatever our denominational preference, Christian or non-Christian. We have an interest in having the freedom to pursue the things we have in common. And as we walk along on that common path, we need the freedom to pursue our own unique differences.

HH: Do you think that the law schools are teaching this, by the way, Elder Oaks, in a fairly coherent…that the Free Exercise gets its due?

DO: I don’t think so. And the young Harvard graduate who helped me with some research on this article told me that he had never heard anything like this at Harvard, which ought to be teaching all sides of every important public question. He said he didn’t hear anything at Harvard like the talk that he helped me research.

HH: That’s…Charles Fried’s there, and of course, he got Obamacare wrong. I won’t ask you to comment on that, Elder Oaks. But Solicitor General Fried was a great defender of the 1st Amendment, so I’m surprised. Maybe he didn’t take Solicitor General Fried.

– – – –

HH: Time for you to get to weigh in. We’ll start on the East Coast in South Carolina. Murray, you’re on the Hugh Hewitt Show with Dallin Oaks.

Murray: Well, thank you very much, and it’s a privilege to be on the air with Elder Oaks…My first question deals with the 1st Amendment. And I particularly want to understand how the 1st Amendment applies to the church, and then the second part, where the press gets the same right as the church.

HH: All right, Elder Oaks, how does the 1st Amendment apply to the church, and how come the press gets the same rights?

DO: Well, the press and the church have the benefit of the free speech and free press provision of the 1st Amendment. Another part of the 1st Amendment is unique to churches, and it’s the provision that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. That’s unique to the church. And it’s the church’s shield and safeguard for every church.

HH: You know, you made a very interesting argument today about elevating the Free Exercise clause above what it has fallen to. It’s not just another right. It’s not one of a collection of rights. It was intended by the framers to be the first couple of rights, ahead of even speech and press, though of course they’re also in the 1st Amendment. It was interesting, and it would give some of the justices good direction, I think, to ponder on that a little bit, Elder Oaks.

DO: I agree.

HH: Let’s go to Brian in Westlake, California. Hi, Brian, you’re on the Hugh Hewitt Show.

Brian: Hey, it’s a pleasure to speak with you both here. Two questions…first, what is Elder Oaks’ favorite non-Scriptural book, and the second question is, is there a line that’s drawn between morality and politics, for example, having political views, the left and the right, you have two public figures like Glenn Beck and Harry Reid who are diametrically opposed to one another. Is there a line that has to be drawn for Mormons in politics?

HH: Great questions. Thank you very much. Favorite book, then the line.

DO: Favorite book? I have many. I would cite one, Team Of Rivals by Doris Kearns Goodwin was, for me, an extraordinary view into that important period when Lincoln presided over a cabinet made up of his rivals, and worked his way through the problems that we had during the Civil War. Remarkable book. Now on the other question, morality, religion, too complicated a subject to say much about, but no question that morality and religion are foundations for our society, and they should govern our political behavior and conduct.

HH: You know, yesterday I had Tim Pawlenty on. He’s got a new memoir out in which he speaks very bluntly about his religious faith, quotes a lot of Scripture, talks about his personal testimony. And I said to him, Governor, you really can’t, isn’t this kind of edgy? And he said well, that’s what I believe, that’s who I am. And that’s the way it’s going to be. But isn’t it remarkable that I’m a conservative talk show host saying I think you’re a little bit out there in the declaration of your religious faith for political purposes.

DO: Let me say something in further answer to the question. We have, as prominent Mormons, Mitt Romney and Harry Reid. They are obviously at opposite ends of a political spectrum. We’re proud that our religious causes such, or brings forth such capable men. And we’re also grateful for the demonstration that the church does not dictate a particular political philosophy, but it trains people, with greater or lesser degrees of success, to be moral and responsible people, and to function wherever their conscience takes them on the political spectrum.

HH: Now Elder Oaks, you’re a guest in my studio, so I’m just going to have to let that part about capable and Harry Reid go past.

DO: (laughing)

HH: (laughing) I’m just going to have to, we’re going to just not take note of that one, and…

DO: Well, Hugh…

HH: (laughing)

DO: You have to know that a religious leader has to be even-handed with all of the members.

HH: I’m with you on that.

DO: Left or right.

HH: And now you’ve got two people running for…John Hunstman…did you see the headline in Politico yesterday, the “Mormon primary”?

DO: Oh my, oh my.

HH: I wrote a friend of mine at Politico and said are you out of your mind? That’s not a story.

DO: No, it really isn’t.

HH: And so I’ll come back to that after the break.

– – – –

HH: John in New York, hello, John, you’re on the Hugh Hewitt Show with Elder Dallin Oaks.

John: Good evening, Hugh, good evening, Elder. My question, I have a two-part question. It leads into the second one. Do you find that it’s unusual for the press that did not cover all the retaliation from Proposition 8?

DO: It is a fact that the press did not cover it all. I don’t consider it unusual. They have to make choices about what they will cover, and perfectly legitimate newsroom choices could have said well, this is just another example of something we’ve already covered. But there was a lot of it that was not covered. And some of those decisions might have been motivated by hostility toward the position.

John: And my second part of the question is do you believe that the homosexual agenda is to almost legislate to be superior to religious and heterosexual people?

HH: Interesting, John, thanks for the call. You talked today about the sexual orientation liberty interest that’s being advanced by some academics.

DO: Yes, and that is a factor, and of course, people are entitled to put their positions forward to try to enhance their own influence or their own objectives. That’s something that can happen in a democratic society. But I think it’s a responsibility of people who believe in the free exercise of religion to say wait a minute, our Constitutional right is enshrined in the 1st Amendment. Your trying to establish a new one. Don’t tell us that your new one prevails over our old one.

HH: Scott in Rockland, California, you’re on with Elder Dallin Oaks.

Scott: Thank you so much, Hugh. I should pay tuition. I actually read the speech while I was on hold. It was excellent, Elder.

HH: Oh, good.

Scott: I was a, I’m a very strong conservative, but I actually love Earl Warren. And I was interested since when we was attorney general in World War II, and he promoted the interment of Japanese, did that ever come up in his decisions when you were his clerk?

DO: No, it did not. But I understood from a fellow clerk that he had had a conversation with the chief justice, and I’m reporting hearsay now…

HH: Sure.

DO: But he said the chief justice was awfully uneasy about having been the person that did that during World War II.

HH: I didn’t know he did. He enforced Korematsu? Or he enforced the exclusion zone?

DO: Yes, he was…

Scott: He advocated it.

HH: I didn’t know that.

DO: He was promoting that.

HH: You know, is there a, thank you so much, Scott. Is there a great biography of Earl Warren that you hold up to people that want to read one, Dallin Oaks?

DO: There are several good ones, but I don’t promote any of them.

HH: All right, let’s go back and talk with Carl in Tucson. Hello, Carl, you’re on the Hugh Hewitt Show.

Carl: Hey, Hugh, thanks for taking the call. Hey, it’s a privilege to talk to you, Elder Oaks. I’m just curious, some months ago, Mr. Hewitt had a guest on his show by the name of Gary Lawrence, who wrote a book called How Americans View Mormons. Just curious to know if you were familiar with that book, and how that book, and the results of his polls, were received by the leadership of the church.

HH: Interesting. I don’t know, have you read Gary’s book?

DO: Yes, I’m familiar with Gary Lawrence’s book. I used it in a lecture I gave at Harvard about ten months ago, and Gary Lawrence was in this lecture audience today.

HH: Oh, Gary was there? Okay.

DO: I spoke with him, and found that he’s the son of a man that was in the radio business in Provo when I was a young radio announcer.

HH: He’s a fine pollster.

DO: I have very high regard for his work. I have used it, and the leaders of the church are very aware of it, and very concerned about what he has found. We don’t question the findings, but the degree of ignorance toward, and hostility toward Mormons in this society is surprising and concerning.

HH: That’s why I had him on. It was, it was very surprising. Thank you, Carl. Shelly in Winchester, hi, Shelly, you’re on the Hugh Hewitt Show with Dallin Oaks.

Shelly: Thank you so much for taking my call, Hugh, and Elder Oaks, it’s a privilege to talk to you.

DO: Thank you.

Shelly: My question goes…I’ve been a member of the church here in Southern California, and I’m wondering if the current climate and the hostility towards the Mormons and everything, if it’s causing the church to pull back a little bit on its Constitution. The church has always been a stalwart defender of the Constitution, and we know it’s divinely inspired. We know it’s the Lord’s Constitution. Yet when I have asked a couple of different wards if I could announce, because we do, Constitutional study groups, they won’t allow it. Yet they’ll allow secular book clubs being announced, they’ll allow kids’ play dates being announced. But they won’t let us talk about, well, we can’t do that, that’s political. Since when has the Constitution become political?

HH: Elder?

DO: Well, it’s a good question. And we’re still finding our way in the extent to which the formal organization of the church would be involved in political issues. And the Proposition 8 fight, and the backlash in connection with that, has made us cautious. We’re still trying to find our way. We do have to be careful, because there are, if we allow something to be announced in a church meeting, then we send people to a meeting over which we have no control. And it can quickly turn into something that the church can’t endorse, impliedly or expressly. And so we have to be a lot more careful about that than we do about announcing a book club.

HH: Thank you, Shelly. Question, today’s speech is controversial. It’s very interesting. Did you clear it with the first presidency and the Quorum of the Twelve? Or is this Dallin Oaks’ musings?

DO: That’s a very good question, and whenever I prepare a talk, I show it to several of my associates. Peer review we call it.

HH: Yup.

DO: And I did that, and got some very good suggestions, one of which was all of the members of the Quorum ought to look at this. And then there was interest expressed by the first presidency. So my talk has been read by almost all of the leaders of the church. Some may be traveling or whatever, so I can’t say it’s 100% of the first presidency and the Quorum of the Twelve. But most of them have read it. Many of them have complimented me on it. But there’s been no formal expression of approval.

– – – –

HH: I want to thank my guest, Elder Dallin Oaks of the Church of Jesus Christ of Latter Day Saints where he serves as an apostle in the Quorum of the Twelve, and Jeff Shields for arranging this and the lecture today at Chapman University. It’s been a real privilege, Elder. Anytime, I’d love to carry on the conversation.

DO: Thank you so much.

HH: Let’s go back and get a couple more in, because you brought this subject up specifically in your speech. Mike in Long Beach, hi, Mike.

Mike: Hi, Hugh, thanks for taking my call. The Catholic Church and the Catholic hospitals have opposed abortion. My concern is, and do you know whether the government will put future pressure on these institutions to perform abortion in their hospitals?

DO: I do not know, but I have heard on reliable authority that that pressure is being cooked up, and administered even as we speak.

HH: And that’s why in your speech today, you talked about, this is one of the encroachments that is coming.

DO: Yes, I quoted Cardinal George on that.

HH: That was troubling. Doug in Glendale…

Doug: All right, my question for Elder Oaks, I could ask you questions all day. But something I’m noticing, and we’re on the front lines here in Hollywood as Christians, and I saw my Mormon buddies just taking a huge hit on the Prop. 8 thing, so first of all, thanks to all the Mormons out there on the front lines. Do you think that the problem is that religion is grounded in something immaterial, whereas race is grounded in the materials, and we have kind of this bias against the immaterial, so it’s harder to defend the right to religious liberty? Where is that grounded? Where is that argument made for our right to something as immaterial, as our right to believe in our religion?

HH: Elder Oaks?

DO: I’m not sure. There may be something to what you say, but if the free exercise of religion means anything, it means that you have to be able to believe in and practice immaterial things, because you can’t prove the existence of God. You can’t prove that God has spoken on these particular issues by any rational means that science and non-believers will accept. And so we can’t recede from advocating and pursuing the free exercise of religion on any kind of distinction like material or immaterial.

HH: Thank you so much, Doug, and once again, I want to thank you, Elder Dallin Oaks, for being here. And the speech is available at http://newsroom.lds.org. Mrs. Oaks, good to have you with us as well, and I hope that people will go there to the website. And if they put up the video at Chapman, I’ll tell people about it. I hope they’ll put the video up over at http://newsroom.lds.org as well.

DO: Thank you.

HH: Thank you.

End of interview.

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