Saturday, December 22, 2012

BYU's Student Review published my response to "LDS Church launches site on homosexuality"

By request, I reproduce my comment responding to the 7 December BYU Student Review article, LDS Church launches site on homosexuality.

"I deeply appreciated official comments from both Elder Oaks:
“what is changing and what needs to change is to help our own members and families understand how to deal with same gender attraction.”
and Eld
er Christofferson:
“Our only real hope in addressing these very sensitive and difficult issues is that we are civil and listen to one another and try to understand.”

Their comments reflect a commitment to empathy that we would all do well to adopt. Saying “One thing that’s always important is to recognize the feelings of a person, that they are real, that they are authentic, that we don’t deny that someone feels a certain way” reflects a connection to the lived experiences of gay Mormons. Last, emphasizing the theme of “stay with us” serves as an important reminder to LGBT members of the love and concern Church members and leaders have for LGBT Mormons.

However, Elder Christofferson and Elder Oaks missed two very crucial points: (1) the value of romantic homosexual relationships, and (2) the moral equivalence of same-sex and opposite-sex romantic relationships.

At one point, Elder Christofferson states that homosexual behavior “can never be anything but transgression.” I wonder exactly what would he would classify as homosexual behavior, out of this list?

-Getting up early to make breakfast for your partner, even though you hate early mornings
-Staying home from work, even though there’s an important deliverable, because your partner is sick
-Having sex with your partner
-Sending your partner flowers at work
-Scrubbing the toilet, even though it’s not your favorite, because you know your partner likes things clean
-Waiting at the halfway mark with a “Go Christy” sign at her marathon

All of these are homosexual behaviors, just as their equivalents are all heterosexual behaviors. To reduce one’s romantic relationships to genital contact is akin to equating marriage as nothing more than the sum of sexual interactions between the spouses. This failure to grasp the value of homosexual behavior is the most glaring flaw in Elder Christofferson’s remarks. Romantic homosexual relationships, like romantic heterosexual relationships, add incredible value to the lives of the gay people who constitute them and to society generally.

In addition to failing to acknowledge the value of homosexual relationships of themselves, both Elder Oaks and Elder Christofferson fail to acknowledge the moral equivalence of same-sex and opposite-sex romantic relationships. Empirically, the outcomes of these relationships are equivalent: but our scriptures additionally teach us that all are alike unto God, male and female. There is no revealed test in the standard works which tells us how to tell a spiritual male from a spiritual female; instead we presumptively rely on a man-made Outward Appearance Test that in turn depends on the external length of a person’s genital tubercle at birth. (By the way: the clitoris and penis are about the same length: one is just bifurcated and largely internal, the other merged and external).

Is our theology really shallow enough that it draws conclusions about spiritual attributes (sex) based on body shape (genitals), as it once drew conclusions about spiritual attributes (pre-mortal valiance) based on body color (black skin)? It is high time to depart from these onerous “philosophies of anatomy, mingled with scripture” and acknowledge the equality of all people before God.

In addition to being incapable of dealing with the reality of intersexed persons, Elder Oaks and Elder Christofferson’s adherence to the biological category of sex fails to recognize that _how_ two romantic partners treat one another is far more morally significant than the number of penises in the couple."

Saturday, December 15, 2012

The new site: more paint, less corner

I first heard of (Published 6 December) from my friend in Washington, DC. Commentary on Facebook and elsewhere  buzzed over the subsequent week.

I made a point, however, of avoiding the reviews. Initially, I want to evaluate it myself before I read others' analysis.

I will organize my analysis thus:

1. Content2. Conclusions

1. Content
Before we get into the statements from Elders Oaks and Christofferson, let's address some text on the landing page:

"The Church’s approach to this issue stands apart from society in many ways.
Perhaps. Certainly, many other religious components of society take a very similar approach; society is far from  monolithic on this issue. This appeal to the common Us v. "the world" (e.g. the world would have you drink; We think differently) fails for the same three reasons. (1) the world has no consensus on almost any issue, (2) Us is part of "the world," and (3) frequently, components of the world take a similar approach.
And that’s alright. Reasonable people can and do differ.
Seems a fair, disarming statement. 10 points for Gryffindor.

From a public relations perspective it would be easier for the Church to simply accept homosexual behavior.
That may be true. Accepting homosexual behavior would not be costless: the flip-flopper penalty would be significant. However, on balance, the credibility tax it currently pays is far higher.  
That we cannot do, for God’s law is not ours to change.
I'm not convinced. There is absolutely scriptural precedent for wrestling with the Lord to change His dictates (e.g. the OT king who bargained for life extension, or the prophet who negotiated amnesty "for the sake of 10"). Certainly, at least, we have some influence on the timing of God's pronouncements, if not their content: else what would be the use in praying? Has the lesson of Jehovah's "what do you propose" invitation to the Brother of Jared been lost on us?
Now, I would agree that seeking revelatory guidance would be an appropriate precedent to accepting homosexual behavior. However, to perpetuate the idea that God's prophets and people are no more than relay points of top-down pronouncements is, I believe, discouraging of the very moral development we were placed here to pursue.

There is no change in the Church’s position of what is morally right. But what is changing — and what needs to change — is to help Church members respond sensitively and thoughtfully when they encounter same-sex attraction in their own families, among other Church members, or elsewhere."
Now that I agree with. Far too many Church members fail to respond sensitively and thoughtfully when encountering gay people in their communities. Church leaders themselves bear some of the responsibility of that failing: but nonetheless, the failure can and should be mitigated by Church members in their local interactions.

Same gender attraction presents many issues and questions in society at large. Much has been written (including by E. Oaks) about the choice of terms here: alternatives included homosexual behavior, homosexuality, homosexual orientation, and same sex attraction. I'll table this debate (which I tackle in my book, Homosexuality: a Straight BYU Student's Perspective) though to address other portions. 

These include what causes it, whether it is subject to change in kind or degree, and whether, or the extent of which, laws like marriage should accommodate it. Our discussion is limited to two related questions we sometimes hear in The Church of Jesus Christ of Latter-day Saints. What does our doctrine teach us about how family members and church members should treat one another when one of their members is struggling with some of these issues, and how can we help members of the church who struggle with same-gender attractions, but want to remain active and fully engaged in the church?
I've always appreciated Elder Oaks's structured, scope-defined addresses. Good work.

Much has also been written on describing homosexual individuals as "struggling." In LDS discourse, struggling is typically a euphemism for failing, and is always negative. Many homosexual individuals bristle at this: "do you 'struggle' with your heterosexuality?" they might ask.
Those who do not consider themselves broken are not in the market for a fix.

Only a conclusion that homosexual relationships are inferior to heterosexual ones (or that a heterosexual orientation is superior to a homosexual one) would unerringly couple the word struggle with same gender attraction.

This same topic was discussed with all of the general authorities of the church in April of 2012.
Oh, the money I would have paid to listen in on that. Was it really a discussion? How many people weighed in?
We will not discuss any of the multitude of other issues and questions. There is so much we don’t understand about this subject, that we’d do well to stay close to what we know from the revealed word of God. What we do know is that the doctrine of the church, that sexual activity should only occur between a man and a woman who are married, has not changed and is not changing.
A consistent stance, to be sure. Except for the fact the standard used to be between a man and several women, but we'll give a pass on that for now.

Backing away from certainty on the multitude of other issues and questions (e.g. cause and cure) is a refreshing change, and only about a decade or so old. I compiled a list of over 60 statements from church leaders over the past 7 decades on the causes of homosexuality: retreating from claiming to know the answers to those other issues is a change, but a welcome one and one that leaves space for future pronouncements. 

But what is changing and what needs to change is to help our own members and families understand how to deal with same gender attraction.
Amen, as mentioned above.

Elder Christofferson:

What is the purpose of this website?

We’re not endeavoring here to try to cover the waterfront and address every issue that could be, and needs to be, addressed in different settings relating to same-sex attraction. But the idea is to open us, all of us, to greater understanding. And you’ll hear stories, experiences from quite a diversity of people and backgrounds and perceptions. They’re genuine, they’re real, they’re authentic. And while you see some saying “this didn’t work” and “this did” and a progression in life, we feel that this can only lead to greater sensitivity and better understanding, and that’s what we’re about. Our only real hope in addressing these very sensitive and difficult issues is that we are civil and listen to one another and try to understand.
A worthy aim, to be sure.

You’ll see in these experiences that some people state what you could call the position of the Church – it coincides perfectly – and others not. But again they’re all very authentic, and as we listen to one other and strive to understand, things can only get better.
One of the things I like about what you see on this website is that people have hope.
Some have not always had hope, and they talk about how they keep hope in their lives, or bring it back if it’s been lost. To me one of the key things, one of the key messages that comes from these experiences, as well as from the teachings of the Church, is that we approach it all with patience, but remembering that the person who’s really striving, has the Savior in his or her life, has the gift of the Holy Ghost, the Comforter, has hope, has happiness, can live in a happy, hopeful way.
Certainly happy, hopeful approaches to life are preferable to despairing ones. Gryffindor is scoring points so far.

What audience is the Church trying to reach?

We may not be talking about large numbers. In fact, we’re probably not.
Ugh. How many does it take to make a large number? Using a conservative 3% estimate, 209 million people in the world are gay or lesbian, as are about a half million Mormons. There are on average about 14 per LDS congregation. But, every soul matters. Everyone is important. The Savior made that plain when he told the parable of leaving the 90 and 9 and going after the 1.
It's a bit more like leaving the 90 and 5 to go after the 5, once you throw in the bisexuals outside one standard deviation, but I get your point. In addition to the sakes of the 5 sheep, the institution's credibility is also at stake: getting marriage, family, and sexual morality right is hardly on the periphery of LDS practice. These matters are central to our theology.
And I believe it’s important, it’s crucial, frankly, if we’re going to be followers of Jesus Christ as we profess and strive to be, that we do minister to each other, every one, without exception.
I'm behind that. That ethic leads me (and many others) to embrace same-sex marriage both in and outside the Church, but at the least we agree on principle.

In another sense, though, the audience is universal. We’re not here dealing with therapy issues and individual treatments and things of that kind. What we’re talking about is how we relate to one another, how we preserve hope and understanding and love, and struggle together in some cases really. I mean, we’re giving meaning to struggle in the sense that we help each other through our challenges.
I suppose the same could be said by a prison warden to his prisoners who yearn to be free. Certainly we all want to help each other through our challenges: but if we are responsible for unnecessarily inflicting the very burden we offer help to lift, the offer risks appearing rather hollow.
This is a challenge, and all of us can understand that and can be empathetic about that because we all have a challenge.
Again, that is not necessarily true, as evidenced by the myriad gays (both in and out of the church) that do not perceive their sexual orientation as a challenge.
I heard it expressed once, someone said: “We all have a horse to tame.” And so same-sex attraction may be one, and something else with someone else.
Ugh again. The implications are that 1) homosexual orientation is somehow wild, unproductive, or useless, 2) homosexual orientation is tameable or can somehow be muffled or redirected into productive activity, and 3) those with homosexual orientation should try to muffle or redirect their orientation.
#1: Homosexual orientation is no more nor less useful than heterosexual orientation, and can be extremely valuable when it is applied in non-oppressive ways to build loving, romantic, erotic, and mutual-caretaking, consensual human relationships.
#2: Homosexual orientation, like heterosexual orientation, is for most people difficult if not impossible to redirect (e.g. towards another sex). It also, as a general rule, fiercely resists attempts to muffle.

#3: There are significant dangers to attempting to destroy or redirecting one's sexual orientation. Additionally, homosexual orientation opens up the potential for relationships of incredible value, e.g. with a beloved spouse, and are not of themselves undesirable.

But we can all appreciate, I think, that each of us face challenges in life, and this is a way for us to help each of us understand better a particular one that may not be so well known or a common experience.
Are we truly open to understanding the experience of homosexual orientation when we insist it is undesirable and a challenge to struggle with?

Is the Church softening its position regarding same sex attraction?

There shouldn’t be a perception or an expectation that the Church’s doctrines or position have changed or are changing. It’s simply not true, and we want youth and all people to understand that.
I disagree. I mapped out statements by Church leaders over the past 7 decades in exquisite detail in my book, and the Church's position has absolutely changed. For instance, Church leaders expounded the causes of homosexuality. Now, Elder Oaks and President Hinckley claim that we do not know the causes of homosexuality. That, my friend, is a distinct and documented change. 
The doctrines that relate to human sexuality and gender are really central to our theology. And marriage between a man and a woman, and the families that come from those marriages – that’s all central to God’s plan and to the opportunities that He offers to us, here and hereafter.
Now this is fun. I wrote an entire book (Breaking the Patriarch Grip: an argument for governance equality through sacred disobedience) about this theology based on outward appearances. Did we learn nothing from our gross error about race? All are alike unto God, my friends: male and female, black and white, bond and free. As with race, we have no objective test to discern who is in  and who is out. Sex, rather than being a binary, is a spectrum (a fact the postgender future will increasingly highlight). The assertion that each human body is embodies either male or female is all well and good: but we have no way to discern whether that is the case nor which sexed spirit inhabits a particular tabernacle.

Church members and leaders, like most people, rely on an Outward Appearance Test to bifurcate humanity. Not only does this approach assume (without merit) a correlation between physical and spiritual sex, it is (1) inconsistent (not everyone agrees by looking whether a person is male or female), (2) arbitrarily relies on the length of a person's genital tubercle, and (3) failes to account for intersexed persons (such as the reader of this post. Did you know, men, that you used to be both sexes, have ovarian tissue in your testicles, and at one point were on the default path to femalehood? And women, you too were bisexed at one point, have testicular tissue in your ovaries, and may in fact have an XY genotype?).

Church leaders' continued insistence on using the categories of male and female to restrict its governance and marriage practices will increasingly vitiate LDS credibility as more and more people abandon pre-critical notions of sex.

So homosexual behavior is contrary to those doctrines – has been, always will be – and can never be anything but transgression.
Elder C clearly oversteps his authority here. God retains the ability to change doctrine, and has exercised that right on numerous occasions in the past. An apostle in 2012 does not have the power to bind his successors, nor God himself, perpetually into the future.

Also, as mentioned above and detailed in my
Why Mormonism Can Abide Gay Marriage presentation, the absence of a test for discerning spiritual sex allows us to frankly embrace a position towards marriage that is blind to the man-made category of biological sex.

Additionally, exactly what would Elder C classify as homosexual behavior, out of this list?

  • Getting up early to make breakfast for your partner, even though you hate early mornings
  • Staying home from work, even though there's an important deliverable, because your partner is sick
  • Having sex with your partner
  • Sending your partner flowers at work
  • Scrubbing the toilet, even though it's not your favorite, because you know your partner likes things clean
  • Waiting at the halfway mark with a "Go Christy" sign at her marathon
I humbly submit that all are homosexual behaviors, just as their equivalents are all heterosexual behaviors. To "lustify" or reduce one's romantic orientation to genital contact is akin to equating marriage as nothing more than the sum of sexual interactions between the spouses. This failure to grasp the value of homosexual behavior is the most glaring flaw in Elder C's talk. Romantic homosexual relationships, like romantic heterosexual relationships, add incredible value to the lives of the gay people who constitute them and to society generally.

It’s something that deprives people of those highest expectations and possibilities that God has for us.
For a number of reasons, articulated in my Why Mormonism Can Abide Gay Marriage presentation, I simply disagree with this conclusion.
That being said, it’s important to remember a few things that people don’t always understand or remember. And that is that homosexual behavior is not the unforgiveable sin. The atonement and repentance can bring full forgiveness there, and peace. And secondly, I’d say though we don’t know everything we know enough to be able to say that same-sex attraction in and of itself is not a sin.
It is merciful to point that out; no doubt that one message alone will reduce much unneeded suffering. 
The feeling, the desire is not classified the same as homosexual behavior itself. And the third point I would mention is that when people have those desires and same-sex attractions, our attitude is “stay with us.” I think that’s what God is saying “Stay with me.” And that’s what we want to say in the Church: “Stay with us.” Let’s work together on this and find friendship and commonality and brotherhood and sisterhood, here more than anywhere. It’s important that there be love, and that there be hope. Love is not to say acceptance or endorsement, but it is to say inclusion and not ostracism. We want to be with you and work together.
A positive and constructive message.

Are there restrictions on Church participation?

Someone who is adhering to the norm of chastity, someone who is following the covenants and the standards, teachings of the gospel of Christ, though they may be dealing with same-sex attraction really there’s no reason they cannot be fully participative, that they can’t be a full-fledged member of the Church and hold callings and speak and enter the temple and serve there, and all the other opportunities and blessings that can come from Church membership will be available to them.
Good stuff.
There are examples of this among Church members, there are multiple examples. And though no one would say that it’s always easy, all of us are endeavoring to maintain those norms and keep our covenants, and we’re all in the same boat, in the same company, in that regard. So, I say there are many, relatively speaking, who are finding that success in their lives and that happiness.

Should one be actively working to overcome same-sex attraction or just coping with it?

What a presumptuous question. There is a third and for most, superior option: neither. It’s difficult to say because each case is different, each person is different. Their circumstances will vary.
True, but the variance is bounded. The majority of gays and lesbians don't find success in overcoming SSA, and many do not find fulfillment in coping with it, at least to the extent that means refraining from same-sex dating and romantic relationships, or entering opposite-sex romantic relationships.

You’ll see in some of these vignettes experiences that are recounted that people have found a diminishing of that same-sex attraction, almost to the point of vanishing, and others not at all.
Okay, but again if you're going to say there are multiple camps, might it not be appropriate to hint as to the size of those camps? As between to the two you indentify, one has a population far disproportionate to the other.  

We don’t counsel people that heterosexual marriage is a panacea.
Thank Allah. Although some of your predecessors taught that very thing.
You’ll see in some of these experiences that are related on this site that it has been a successful experience in a few cases, or some have expressed the success they’ve found in marriage and in raising a family and in the joy and all that has filled out and blessed their lives as a consequence. But that, we know, is not always true.
:) Again, "not always" belies the more realistic statistic of "usually not." Additionally, Elder C does not even mention the option of marriage and raising a family in a same-sex relationship, an option, it turns out, many homosexuals prefer.
It’s not always successful. Sometimes it’s been even disastrous. So, we think it’s something that each person can evaluate and they can discuss, both with priesthood leaders and family and others, and make decisions. If the existence of a range of outcomes (e.g. successful to disastrous) of a particular option justifies individuals counseling with others and deciding, they why not apply that same logic to same-sex marriage? The outcomes of same-sex marriages similarly vary from successful to disastrous (though I suspect, as rated by the spouses themselves, same-sex marriages will come in as being, on average, less disastrous that mixed-orientation opposite-sex ones).But we simply don’t take a uniform position of saying “yes” always or “no” always.
! Then do the same thing for same-sex marriage!

One thing we want to stress is that this is but one aspect of any person’s life, and it need not become the consuming aspect of his or her life.
Is your marriage, Elder C, merely "one aspect" of your life? The nexus between one's sexual orientation and one's romantic partner is not a loose one. For those that centrally value their romantic relationship, sexual orientation is not a tangential matter.
One thing that’s always important is to recognize the feelings of a person, that they are real, that they are authentic, that we don’t deny that someone feels a certain way. We take the reality where it is, and we go from there.
That's progressive language right there: relative to past apostolic dialogue on homosexuality.
And we want people to feel that they have a home here, that we have much, much more in common than anything that’s different about us.

Some of the experiences that are related there talk about that in this website. And I believe it is crucial that we always continue to feel that, to express that, to acknowledge the reality of people’s feelings and circumstances, and go from there.

History aside, what counsel can you provide to those who are afraid to approach their local leaders?

I can understand that there could have been a legitimate concern about the kind of reception one might find from a local priesthood leader in the past. But I’m convinced that today that there are so much more help and resources available to a bishop or a local priesthood leader. There’s greater understanding, there’s greater appreciation of the issues and how to help. We are training bishops; they have resources that they haven’t had in the past, that we haven’t been able to make available. There are resources online, there are resources in print. There’s just greater experience over time that has developed and accumulated. So, again, I say it’s really one of the very best first steps for one to take.

Describe the ideal setting for discussing this important issue?

Initial reactions are critical. And the inclination, the temptation that people have often is anger or rejection. Sometimes it’s simply denial, on both sides of the question, whatever it may be.
I think he's right on both scores.
And it’s important to have enough self control to lay all that aside and to have a little patience, and to begin to talk and begin to listen and begin to try to understand better.
I affirm.
We lose nothing by spending time together, by trying to understand, even where there’s not agreement on a course to follow at the moment or how to respond or how to react. We don’t have to do everything today. We don’t have to resolve everything in a month or a week or a year. These things are questions of resolution over time and accommodation over time and seeking the will of the Lord over time and guided by him over time. So, I hope we will give ourselves the time and have the patience to listen and understand and not insist on everything being resolved within a certain framework of time.
Seems wise enough.

Why doesn’t the Church just let people be?

This is a gospel of change. Jesus Christ is asking every one of us to change, and to become better and to progress and to follow in his footsteps. His ultimate commandment is that we become as He is and as His father.
Trouble! The immediate thought here is that Elohim is straight, so I have to become straight as well. Now, Elohim may have a thousand wives as well, but that doesn't mean a woman should look to wed an already married man, nor that a married man should nurture a non-monogamous orientation and try to marry a thousand wives right now. Elohim may have all his limbs, but that doesn't mean an amputee needs to take immediate action.
Sure, there is room to mature in our moral development: but none of our spirits are broken because of a present aspect of our bodies.
And none of us are at that point. None of us have things, are free of things that we don’t need to change in our lives and to improve.
The context of this message is homosexual orientation. To suggest the need to change implies that gay people can change, and that they should change, their orientation to be like God's. Both implications cause more harm than help.  
And the standard is always the gospel of Jesus Christ. And every one of us has to measure up to that standard because that’s where our ultimate happiness is going to be found. That’s where our ultimate freedom is going to come. And God being just and loving all of His Children is going to help everyone who wants to progress toward that ideal, whatever they may need to do in their lives to do that.
Again, without further clarification and given that the entire rest of this message addresses same-gender attraction, and that the identified timetable is this life, the promise that a just God will help gay people become straight is flat-out false. If that were true, the gates of despair would not be littered with the lives of thousands of gay Mormons that have broken themselves on that promise.

2. Conclusions

The website is progressive in many ways, especially in its acknowledgement of homosexual orientation and the insistence that Church members respond sensitively and thoughtfully to LGBT people.

What Elders Oaks and Christofferson fail to do, however, is create space for that thoughtful and sensitive response to include affirmation of same-sex marriage. They fail to identify the (1) value and (2) equivalence of same-sex romantic relationships relative to opposite-sex ones. They fail to articulate a test for discerning spiritual sex, a categorization they rely on for their moral conclusions. Glaringly, if their advice was taken, a half-million Mormons would either choose (1) lifelong celibacy or (2) risky mixed-orientation rather than (3) pursuing healthy same-sex romantic relationships. That these same leaders encourage the pursuit of healthy romantic relationships between straight opposite-sexed persons evidences a grave inequality.

Using words like "always will be" and "can never be anything but" transgression paints future leaders into a corner they can only escape by paying a heavy credibility tax (similar to that still being paid on the race and polygamy issues). In the meantime, the price of that increasingly untenable and unpopular position is the continued opportunity cost of gay mormons' same-sex relationships at the least, and additional unnecessary struggle and rejection at worst.

My conclusion in a phrase? More paint, less corner.

Friday, December 7, 2012

BYU's Policy of Kicking Out LDS Students That Convert: Addressed by Managing Director of BYU's International Center for Law and Religion Studies

THEY ASKED MY QUESTION. I couldn't believe it.

"Under BYU's honor code, LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism lose the ability to enroll, graduate, and receive an otherwise-earned diploma. Please address the extent to which this policy burdens religious freedom under the meaning you've proposed. Given that the ICLRS is housed on BYU campus, please also address the effect of perceptions of this policy on the ICLRS's outreach."

Bob Smith, ICLRS Managing Director.
View the video yourself here (my Q takes up 53:30-56:12)
Now I suppose I should back up a bit and give some context before I detail the question's answer, so you can see why this moment was such a big deal to me. A week ago, I blogged about a discussion series I was invited to attend. Hosted by the International Center for Law and Religion Studies, the one hour, 5th December session at BYU Law promised an address by Professor Robert Smith, the ICLRS's Managing Director, on "A Contest of Greatest Importance: The Battle over the Meaning of Religious Freedom."

In the first draft of my blog post, I expressed my angst about not being able to attend. On a closer read of the invite, however, I noticed that invitees could attend by webinar! I signed up immediately, blocked out the time on my work calendar, and tapped my foot on the floor with excitement. I couldn't wait!

In my blog post, I analyzed the invitation's assertion that "Unless we fully understand the meaning of religious freedom, we are in danger of losing this most cherished “First Freedom” of our Bill of Rights as it is inexorably defined away, leaving little left to be protected." I pointed out that the argument begs the question, as it assumes the assertion it sets out to prove: namely, that the narrow definitions of religious freedom it criticizes misconstrue the meaning of religious freedom. If you want to demonstrate the meaning of religious freedom, proposing a broader definition than your opponent only wins the day if you first assume that that the broader definition is the right one: hence you're back at square one.

Dr. Smith's address, however, offered more than the invitation's tautology: he would attempt to construe the meaning of religious freedom. Given his credentials, the importance of the subject, and my own uncertainty about the meaning of religious freedom, I was an easy sell.
This is my "I'm sold" face
Finally, the day came. I found a quiet spot at work, logged in on my smartphone, and plugged in the headphones. I was all keyed up: it felt like Christmas or the big game or something. I guess it's because I really, really care about this issue. About six years ago, my brother converted to atheism. Unfortunately for him, he did so while a junior at BYU. Now, that in itself is not terribly unusual: there are hundreds of atheists, agnostics, and questioning LDS students at BYU. Most of them simply can their doubts, compromise their consciences, zip their mouths, hide their convictions, populate the pews enough to escape the radar, or some other combination that lets them get their degrees and move on with their lives.

My brother's problem was that he's opposed to putting on appearances. He simply ceased the charade of playing Mormon. A few months later he, like many before and since, was quickly and quietly kicked out of BYU.

 You can start Catholic and graduate Mormon. You can start Muslim and graduate atheist.
But you can't start Mormon and graduate: unless you're still Mormon.

University Chaplain. Jolly fellow. Helped me understand how the Honor Code
applies to the non-Mormon students he's charged with shepherding.
A few years after that expulsion, I began law school at BYU. Amongst the several causes I took up during those three years (inmate advocacy and homosexual rights, for instance), was freedom of religion at BYU. I pestered multiple BYU Vice Presidents. I petitioned the Director of the ICLRS. I cornered the BYU Chaplain. I plead with a member of the Honor Code Committee. I made YouTube videos. I wrote and wrote and wrote

Like most of my efforts to change the world, though, my activism fell pretty flat. The conversations were painfully frustrating. Here's one with VP John Tanner*:

*I invite these interlocutors to openly speak for themselves, and to publish their views openly, on this issue. Take my recollections with a grain of salt. Though I recorded the conversations while still fresh, my memory is doubtlessly flawed, and the strength of my views on this subject biases my perceptions.

BYU VP John Tanner. Super friendly, inspiring, sincere.
Hardliner on covenant breakers.
Me:  Who is the decision maker I could talk to about religious freedom at BYU?
VP:  What do you mean?  In what way?
Me:  That LDS students who leave the church or join a different religion get kicked out.
VP:  Oh.  That is a Board of Trustees policy; no administrator has that power.  The Board of Trustees is constituted of the First Presidency as executive members, one general authority, one member of the Quorum of the Twelve Apostles, the Relief Society President, and the Young Women’s General President.
Me:  When is the last time this issue came up?  Article of Faith 11 says that we let all men worship how, where, or what they may.  BYU already allows non-members here, we just charge them higher tuition.  Why not just slap the apostates with a higher tuition but still let them graduate like other non-members? 
VP:  I think this was addressed in the 1990’s.  It’s a tough one because of the additional academic consequences of disfellowshipping or excommunicating a student.  If the student confesses something to a bishop, it would make sense to keep the student here to work with that bishop- but if the student is kicked out he’ll probably leave.  Plus, it adds an additional penalty consequence to the church discipline.  As to kicking out students, what makes the difference is whether the student has made covenants or not.  Those who have made serious covenants and then break them- well, in that case…
Me:  I don’t know- I mean, covenant breakers or not, they’re still people.  Article of Faith 11 says “all men-“ whether a person has made covenants or not or broken them or not doesn’t make them non-persons. 
VP:  Well another thing to think about is that church leaders go to Stake Conferences around the church and parents ask them why their faithful children can’t attend BYU.  BYU rejects a lot of its LDS applicants.  Why should it support apostates when there are faithful members who desire so intensely to come here?
Me:  But BYU doesn’t even require you to be LDS to be a student here- we have students from a number of faiths that we admit over LDS competitors.  As long as that’s the reality that argument fails.
VP:  That’s how the Board thinks covenant breakers should be dealt with.  They made serious covenants.
Me:  Well, what about those whose consciences dictate in their third or fourth year that they should leave the church or join another faith?  Must they betray their conscience in order to graduate after sinking years of their life and their money into going to BYU? 
VP:  Yes, some hypocrites do just keep going to church so they can graduate. Others make it a matter of conscience and leave, which sacrifices their ability to graduate.  Religious freedom is a privilege, not a civil right. You can be any religion you want, BYU just puts a consequence on what you decide.
Me:  I wouldn’t argue that it is a civil right.  I acknowledge that in the BYU context it’s not.  It’s a matter instead of burdening which religion someone chooses to be.  Kicking a student who’s about to graduate out because they choose to leave the church or join a different one is a heavy handed response that seems inconsistent with Article of Faith 11.
VP:  I’m just telling you that’s how the councils of the church would deliberate the matter. (conversation end)

BYU VP and former BYU Law Dean Kevin Worthen. Erudite, powerful.
Hardliner on enforcing student's signed waiver of religious freedom.
Kevin Worthen took a different approach. He argued that religious freedom arguments in this context are null, since by signing the Honor Code students contractually forfeit that freedom: thus, there is no injustice in holding them to their contract. Additionally, he said the consequence is justified since we are right. Being the true church, apostasy from the same is always wrong: to assert otherwise is to admit we don't really believe our religion is God's only.

Due to situational constraints, I didn't have time to fully debate the morality of an educational institution's offer to teenagers of a term that they contract away 4-6 years of their religious freedom, nor the extent to which the Honor Code is an enforceable contract (mutuality of obligation, contracts prof?).  When you're trying to catch a busy VP's ear, you take what snippets you can I suppose.

I will point out the contrast between Dr. Worthen's position and that of James Madison, as quoted by Professor Smith in his presentation:

"These two rights were identified by James Madison in his 1785 'Memorial and Remonstrance Against Religious Assessments” in which he stated that the “Religion . . . must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.  This right is in its nature an unalienable right."

Many would agree with Mr. Madison that individual religious choice, specifically the exercise as dictated by conviction and conscience, is inalienable (i.e. it can't be waived: even by signing the honor code).

At the end of the day though, it strikes me as more odd that a religious man, especially one with Dr. Worthen's training, would be inclined to argue that a teenager can waive her religious freedom. Given the presumption (one that I affirm, coincidentally) that the absence of individual religious freedom is dreadful, it should be of little consequence whether the means to that end is a contract by the agent or compulsion by an external force.

I should respond to his fundamentalist "because we're right" argument as well. I must frankly confess that at the time his words deeply disturbed and frightened me. He previously taught one of my law school classes and came across then as a reasonably sensitive and eminently rational man. The same intolerant reasoning he used would (and did) justify all sorts of egregious burdens on those who believe differently or apostatize, including punishing blasphemers and apostates by stoning/burning, etc. I remember at the time sincerely hoping to never be found in a position of being sentenced by that man in a religious context where he is empowered to hurt those convicted.

ICLRS Director W. Cole Durham. Spiritual rock. Ponderous. 
I agreed not to talk about the contents of our discussion, but I will say Professor Durham gave the most thoughtful defense of BYU's policy that I've yet heard.

Anyway, the point of these stories is that this issue means a lot to me. Now let's return to the moment when I plugged in my headphones.

The first thing I noticed on my iPhone GoToMeeting app was a tab called "Questions." Suddenly I realized that I might be able to interact with the speaker! That prospect contributed to my already sweaty palms. There's a certain fear/thrill in asking edgy questions at BYU Law, I've learned. I felt similarly when, during a Q and A, I called out Prop 8 attorney Chuck Cooper on his non sequitur about gays causing the breakdown of the family.
The thoughtful man you see in the background there behind Mr. Cooper is James Rasband, the BYU Law Dean.
A few months after this pic, & right before I started selling my Homosexuality: A Straight BYU Student's Perspective book at the BYU library, he kindly reminded me that the law school could not protect me from the Honor Code Office.
As Professor Smith started, I began crafting my question on the app. After a few mental drafts, I typed it in the question box but did not press send. Prof. Smith then gave what I though was a solid, well-informed, and amply supported lecture about the meaning of religious freedom, as he promised to do. I invite you to read/watch his address yourself.

At last, the big moment came. With a few minutes left in the hour but the presentation not yet over, I took a gamble that he would field questions, pressed send, and squeezed my eyes shut in the hopes that webinar participants would be included.

Sure enough! The very first question was mine. Some aide read it aloud on my behalf (bless you, whoever you are), loud and clear. I was thrilled out of my shoes. I include the unadulterated transcript here. (The video is here: my Q takes up 53:30-56:12).

This question comes from an online participant. "Under BYU's honor code, LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism lose the ability to enroll, graduate, and receive an otherwise-earned diploma. Please address the extent to which this policy burdens religious freedom under the meaning you've proposed. Given that the ICLRS is housed on BYU campus, please also address the effect of perceptions of this policy on the ICLRS's outreach."

S: Okay that was a, that was a good question a good loaded question. Could everyone hear the question?

I think there's a lot to that and I will have to punt a little bit, let me just say this, that religious societies can define who are members of their society. That's part of church autonomy. It's part of internal decision making. Just as a church can excommunicate one of its members, it can do something less severe by withholding certain privileges.

I never talked with the university about this policy, I don't know how it's been used in practice. So my understanding is very limited, but I would suggest that that is one way to think about that and to think about whether or not society does have a right to withhold its fellowship, if you will, to others who reject its religion.

Now this is short, however, of legal impediments. Obviously a person who no longer studied at BYU would certainly have the right to study at another university, so a fundamental right has not been taken away if they leave.  Just in the same way that someone who is excommunicated from the church, they have the right to join another one if they choose or to comply with the requirements to be reintroduced into the fellowship of that church.

In terms of ICLRS and our standards, I think that's what we would do, we would just I would assert to you that we would consider those values, and the right of religious associations to have internal decision making power.

That was the answer to my question.

Now remember to cut the man some slack: Q and A puts you on the spot, and it's a tough position to answer from, even for the well-trained. That being said, my analysis in blue.

S: Okay that was a, that was a good question a good loaded question. Could everyone hear the question?
Why thank you, I thought of it myself! :-)

I think there's a lot to that and I will have to punt a little bit, let me just say this, that religious societies can define who are members of their society. That's part of church autonomy. It's part of internal decision making. Just as a church can excommunicate one of its members, it can do something less severe by withholding certain privileges.

I agree so far. Yes, religious societies can define who the members of their society are.

Unfortunately, that point is completely, 100%, and in all other ways, irrelevant. Why? Because BYU is not a religious society! It is instead an independent, domestic nonprofit corporation (entity #
565683-0140 in case anyone was wondering). The LDS Church arguably doesn't exist (though fascinating, that shall wait for another discussion), but to the extent that it does via COP and CPB, you can see for yourself that it is wholly distinct and separate from BYU.
Yep, BYU is a baby boomer

Founding BYU Law Dean Rex Lee argued CPB v. Amos, the case Dr. Smith referenced in his address.
Said SCOTUS: "Undoubtedly, Mayson's freedom of choice in religious matters was impinged upon,
but it was the Church (through the COP and the CPB), and not the Government,
who put him to the choice of changing his religious practices or losing his job."
Isn't corporate history fun?
Now perhaps BYU is its own religious society independent of the LDS Church. Students, both LDS and non-LDS, are now members of two religions (presumably with President Monson as head in the one, and LaVell Edwards in the other). We could call all those admitted or employed at BYU "members" instead of "students" and "professors." We could make faculty the priesthood leadership (but I guess then you'd run into the women-in-governance problem) and sing hymns like "I belong to the church of B...Y-U." Unless the LDS Church or BYU starts permitting dual religious membership, the two societies could arguably expel/excommunicate their members for religious double-dipping. Steve Young can be Jesus and Cosmo an apostle. I suppose the hazing of Freshman would suffice for the initiating ordinance.

Additional absurd results obtain if gaining student status is equated to membership in the LDS Church, and losing student status to excommunication. For one, the hundreds of non-member students are in for a rude awakening. Second, Mormons who graduated or began but never graduated are no longer Latter-day Saints. (I for one am a temple-attending, enthusiastic Mormon, so I sure hope that's not the case.) Third, a 4.0 GPA would automatically guarantee exaltation. Last, you'd have to submerge acceptance letters in water before sending them out, as us Mormons believe in baptism by immersion.  ;-)

More seriously, Professor Smith's response to this question deeply mistakes the facts, and exposes a common misconception about this crucial issue. As evidenced by the presence of non-Mormons in student ranks, and the independence of the two entities, it is entirely feasible for an LDS student to lose her membership in the LDS church (whatever that putative membership means: since COP and CPB are corporations sole, unlike other churches they rather awkwardly have only one member each, bulging the LDS Church membership ranks to a respectable and very consistent 2) while retaining her student status. BYU, a corporation engaged in the business of selling secular academic degrees, doesn't look like, feel like, or act like a religious society. If you were to step in BYU (and I have: spent 8 years so stepping in fact), it would not smell like a religious society. Since BYU is not a religious society, it is quite impossible for it to exercise church autonomy.

During his presentation, Professor Smith used the word "organization," "association," "entity," or "societies" about 1.5 times per minute (73 times in 50 minutes). Given this substantial emphasis and the nature of his professional work, it is very surprising that his organizational analysis fails so completely.

I never talked with the university about this policy, I don't know how it's been used in practice. So my understanding is very limited,

You don't know how it's been used in practice? You're the Managing Director of a Center on Law and Religion Studies, and you don't know about religious freedom on your own campus? That's something akin to a professional landscaper who, though he presumably walks from his home to his car for work, somehow never notices the overgrown, irregular, sloping path he treads each day.

I've driven international delegates to the ICLRS's annual conference. The ICLRS invites representatives from dozens of countries to come to BYU to learn about protecting religious freedom. How would the Muslim delegates feel to learn that 98% of the students on that campus can only choose to follow Mohammed (peace be upon him) on pain of the equivalent of job termination (specifically, the loss of the ability to enroll, graduate, or have an earned degree post)? In his 7 years as Managing Director, has Professor Smith really never considered the inner vessel, or the potential perception of hypocrisy that a religious freedom conference is hosted on a campus that for tens of thousands adds the specter of expulsion to the already difficult business of finding one's feet during the challenging years of emerging adulthood? 

In any case, as an expert on religious freedom who just articulated the meaning of religious freedom, I expect a far better performance in applying that articulation to a real life question.  Put the lesson you just taught us to work! Less than ten minutes ago you articulated a specific, structured approach to these questions. Permit a reminder during which I evaluate your application of your own approach, line by line, in blue. You said:

"I have attempted to lay out a straightforward description of religious
freedom that can be easily understood and used to defend this right in the battles
looming ahead. Of course, other may have additional suggestions. I welcome those. 
There is a battle over religious freedom at BYU, so your description is applicable here.

The fundamentals of this definitional approach are to first identify the groups
claiming the right of religious freedom,

1) Individuals (and families)
The question stem identifies "LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism." These LDS students are individuals. Not only do you entirely sidestep the soul-wrenching internal struggles of theses LDS students whose consciences dictate that they should follow Allah, or leave religion, or become Catholic: not once in your analysis did you identify these students as claimants of the right of religious freedom.
Since (A) manifesting conversion and (B) practicing Islam, atheism, or Islam are both obvious religious exercises, yours is a glaring oversight.

2) Religious associations, and
You spoke at length about the religious freedom claimed by a religious association: presumably, in this case, the LDS Church. However, your identification is dead wrong, as the situation presents no burden on the religious freedom of the LDS church, including its internal autonomy. As explained above:
(1) The policy is owned and administered by BYU, which is not a religious society. Some would go as far as to claim that it is instead a university (come to think of it, that's how you described it immediately preceding) whose primary transaction is the granting of secular academic degrees.
(2) The LDS church's ability to decide its membership is not affected or implicated by the policy, church membership and student status being entirely independent.
3) Society at large You appropriately did not mention society, since public square analysis is not relevant in the context of the question.
Doing so, I believe, will direct attention to the rights of religious associations and
society that are often overlooked.
You did direct attention to religious associations, in harmony with your attempt to counterbalance what you claim is their relative neglect. In doing so, you have gone too far the other way, and entirely neglected the religious rights of individuals.
Second, I have attempted to identify key principles underlying the right of religious
freedom from each group.

1) For individuals, this is the
a. right of conscience
This right is directly implied by the question stem, as manifesting conversion and conversion itself are often, if not usually, matters of conscience. Given how deeply held and intimate religious belief, identity, and practice is to those who have typically spent decades in the LDS Church, the rights of conscience of LDS BYU students merits special (or at least the normal level of) protection. LDS students that convert fear to raise their voices, explore their questions, and direct their lives because of the magnitude of consequences BYU chooses to impose on them. No analysis is complete that fails to at least acknowledge the reality of the tears, struggle, depression, and relational strain experienced by students whose religious minds are either questioning or convicted of a path besides that offered by Mormonism.
The 18-25 age range is the
peak time during which, according to some emerging adulthood literature, people are most likely to leave their childhood faith (see e.g. Arnett, Emerging Adulthood). Were Joseph Smith to have and proclaim a First Vision while an LDS student at BYU, your analysis would unquestionably affirm his consequent expulsion.
To summarize, unnecessarily adding to the already difficult stress of a faith transition clearly burdens the right of conscience, a fact you omitted. 

2) For religious societies as entities, this is the
a. right to not be subject to discrimination vis-à-vis other organizations,
b.  the right to internal church decisionmaking or autonomy, and
c. the right to retain the historic uniqueness of religious associations.
You spoke at some length about church decision making; however, as is likely becoming monotonous by now, such arguments are irrelevant as there is no church in the situation whose uniqueness, autonomy, or discrimination is threatened. 

3) For society at large, this is the
a. obligation to permit and the right to hear religious voices in matters
of public policy."
Again, not germane here.

This exercise feels so reminiscent of law school exams; except perhaps that I'm doing the grading. Ugh, that reminds of taking the bar.

Anyway! Let's continue the analysis, now that we've finished applying his analysis to his own application of that analysis.

but I would suggest that that is one way to think about that and to think about whether or not society does have a right to withhold its fellowship, if you will, to others who reject its religion.

Are you suggesting again that the ability to enroll or have an earned degree post is fellowship of a religious society? That is bizarre. Membership, disciplinary status, temple worthiness, the privilege of participating in meetings or rituals: these are the indices of religious fellowship, not whether you can sign up for weightlifting next semester. In any case, once again, BYU is not a religious society.

Now this is short, however, of legal impediments. Obviously a person who no longer studied at BYU would certainly have the right to study at another university, so a fundamental right has not been taken away if they leave.  

I agree that no fundamental right to study at a university has been deprived. I would note however, as you fail to, that barring a current student from enrolling or graduating is pragmatically equivalent to an employment termination, and as such is a heavy burden to most students. Consider if you were fired from your current job. Wouldn't you, at the least, have to pay transition costs such as a period of lost wages between jobs, the uncertainty of job searching (especially after being involuntarily terminated), having to establish new networks, and losing the comparative advantage of the institutional understanding you'd earned through your work to-date? The consequences are similar for university students.

Additionally, again as a practical matter, it is not always feasible to pick up and go elsewhere, as BYU credits frequently do not transfer to other educational institutions. Three examples: 

1) Religious credits:  many schools do not accept these.
2) Graduate or unique programs: very few credits are accepted. MPA programs, for instance, usually accept no more than 6 credits from a transfer. Students in the final or penultimate semester of their programs thus lose 1-2 years worth of credits, plus the opportunity cost of the year they spend repeating coursework.
3) Law school: obligated to only graduate students that spend their last two years in the graduating school, a law student in her last or penultimate semester has to spend five years with its attendant tuition and opportunity cost to obtain a three year juris doctorate. 
Identifying a fundamental right to study at a university is relevant, though barely. Omitting likely, heavy real life consequences while spending time addressing a barely relevant right reflects poorly on your grasp of the burden on the individuals' religious freedom.

Additionally, you euphemistically speak of "a person who no longer studied at BYU" and "if they leave" without attributing the actions (barring enrollment and graduation) to the actor (BYU). Phrases that would reflect an understanding of who is claiming (step 1 of your approach) and who is restricting religious freedom include "a student that BYU bars from enrolling" and "if BYU expels." The students in the question stem did not leave; they manifested conversion or practiced a religion. It was the institution who acted in response by penalizing the students' behavior.

Just in the same way that someone who is excommunicated from the church, they have the right to join another one if they choose or to comply with the requirements to be reintroduced into the fellowship of that church.

That's nice, though irrelevant and not entirely accurate. The students in the question stem were not excommunicated: instead, they were barred from enrolling and graduating. Additionally, as a factual matter, individuals are not legally privileged to be reintroduced into a religious society's fellowship. A religious society could permanently excommunicate a member without recourse and bereft of the obligation to provide a pathway for return.

In terms of ICLRS and our standards, I think that's what we would do, we would just I would assert to you that we would consider those values, and the right of religious associations to have internal decision making power.

You conclude with your weakest argument, as internal decision making is neither threatened nor implicated by the scenario.

As an analytical endnote, you arguably had at least one success.
According to your own religious tenets (at least presumably), religious associations are temporary institutions whose duration and importance pales when compared to the immortality and import of a human soul. Your analysis favors the actions of churches over people, and exalts the value of the agency of a corporation above the value of preventing grievous and unnecessary intrusions on the religious agency of what the law calls "natural persons" (and the scriptures, "children of God"). Your answer thus succeeded in giving absolutely zero consideration to the value of protecting the religious free agency of God's sons and daughters, the only entities in the scenario worth saving.

And that does it: response analyzed.

Sunday, December 2, 2012

The Emperor's Clothes: Religious Freedom and BYU Law's International Center for Law and Religion Studies

A few days ago I received an email from the J. Reuben Clark Law Society of which I am a member:

December ICLRS Religious Freedom Discussion
Please plan to attend our next Religious Freedom Discussion on Wednesday, December 5, 2012, from 12-1 p.m. MST when Professor Robert T. Smith presents “A Contest of Greatest Importance: The Battle over the Meaning of Religious Freedom.” 

I can't wait. I just registered for the webinar. I would like to participate in the dialogue: to that end, I will comment on the text of the invitation below in blue.
In an important address delivered at BYU-Idaho titled simply “Religious Freedom,” Elder Dallin H. Oaks stated: “There is a battle over the meaning of that freedom. The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.” (Emphasis added).
To prevail in this battle, we must first understand what is at stake. We intuitively understand that persecution or torture based on one’s religious beliefs is a gross violation of religious freedom. But what of the government requiring Catholic schools and hospitals to provide contraceptives as part of their employee health insurance plans? Is this a violation of religious freedom?

What indeed? I think Elder Oaks and I would agree that there is an inherent tension between the government's constitutional interest in protecting religious freedom and other legitimate government interests. I would add a few "what of's" to Elder Oaks' borderliner example. What of:
  • Some people being exempt from complying with federal laws prohibiting animal torture and slaughter, out of a religious practice of animal sacrifice?
  • Some organizations being allowed to terminate an employee based on that employee's status within a particular religion? (e.g. CPB v. Amos, where a man’s exercise of religion cost him his job at the hands of the LDS church: SCOTUS said, “Undoubtedly, Mayson's freedom of choice in religious matters was impinged upon, but it was the Church (through the COP and the CPB), and not the Government, who put him to the choice of changing his religious practices or losing his job.”)
  • Religions being privileged to discriminate in other ways comparable organizations are prohibited from doing, e.g. refusing to hire on the basis of sexual orientation? 
  • A religious marriage practice (polygamy) being criminalized?
  • The United Congregation of Paul employees opting out of paying social security or other payroll taxes?
  • Some people getting a pass on peyote or cannabis consumption due to religious affiliation?
  • A parent being privileged to prohibit their children from being educated past eighth grade due to religious belief?
  • Some children being denied needed blood transfusions due to a parent's religious belief?
  • Parents being privileged to compel the religious participation of their adolescent children?
  • Some organizations (say, the Jewish Transhumanist Association) being exempt from complying with federal genetic engineering regulations?
Though I don't immediately answer these questions, I think Elder Oaks and I would agree that there should be both a floor and a ceiling to the scope of religious freedom. I think we also both agree that religious speech (declaring one's religious affiliation or beliefs, and preaching and publishing about the contents of those beliefs) is safely nestled between those two bounds.

The answer depends in great part on how we define what religious freedom is.   

I absolutely agree. Let me speak to what I consider to be three crucial criteria, admitting my lack of scholarship on the subject:

Whether we construe religious freedom as an individual or an institutional liberty

The First Amendment identifies both an institutional (establishment of religion) and individual (free exercise) component to the religious freedom protection. The First Amendment contains a mix of individual and institutional liberties: press, assemble, speech, and petitioning. Prayer in schools and religious displays in public places capture most of the borderline controversy on the establishment (organizational) side: free exercise is where most of the action centers.

Institutional and individual religious freedom frequently conflict. For example, the policy at BYU is to kick out those who convert while at BYU. More narrowly, the burden falls on the religious freedom of the LDS majority: you can come Muslim and leave Catholic, or come Presbyterian and leave Mormon, but if you come Mormon and try to leave atheist or Rastafari, you lose the ability to (1) enroll, (2) graduate, and (3) receive an otherwise-earned diploma.
*[For the sake of disclosure, I should mention that I have fiercely and publicly opposed this policy (see my activism and writings here, here, and here). I should also note that my brother is a victim of the policy (a BYU senior, he chose to be forthright about his conversion to atheism and was consequently barred from graduating)].

The bottom line is that religious freedom is often a zero-sum game: the religious institution cannot simultaneously retain the power to terminate a student or employee on the basis of religious exercise while the individual enjoys protection from the same.

Joseph Smith embraced the individual worship aspect of religious freedom in the well-known Article of Faith 11:
“We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”  He certainly claimed that privilege previous to establishing a religious order: he entered and exited the grove without a religious affiliation, and endured persecutions long before organizing the church.

On the other hand, the a
rticle does use plural terms (we,

our, men, them, they), and Joseph did subsequently canonize a position on institutional religious freedom:
We believe that all religious societies have a right to deal with their members for disorderly conduct, according to the rules and regulations of such societies; provided that such dealings be for fellowship and good standing; but we do not believe that any religious society has authority to try men on the right of property or life, to take from them this world’s goods, or to put them in jeopardy of either life or limb, or to inflict any physical punishment upon them. They can only excommunicate them from their society, and withdraw from them their fellowship.” -D&C 134: 10"

Does one's progress towards graduation or livelihood constitute "this world's goods" that are deprived from Church LDS employees or LDS BYU students that elect to follow their religious consciences into atheism or Catholicism? Would a policy of disfellowshipment or excommunication alone be more in harmony with both secular and Doctrine and Covenant constructions of individual and institutional religious freedom? To what extent does one or the other prevail when constructing religious freedom?

How we discern between religious and non-religious activity

This criteria must be defined as well to answer the constitutive question of what religious freedom is. I table discussion of this question here and here.

What level of burden qualifies as an impingement

Let me start by pointing out that the religious freedom scope properly centers around how burdened religious exercise is, rather than actual restriction of religious belief or practice. For instance, being unable to detect an internal belief, the state cannot forcibly restrict the same. Instead, they can only regulate the expressions of religious belief: religious exercise. That regulation can vary from light to heavy.

Torture or execution as a result of one's attendance at church or declaration of religious affiliation is clearly an excessive burden on religious exercise. Requiring an organization to (1) identify as a religion, or (2) comply with campaign finance laws, though burdensome at some level, are examples of light impositions. The magnitude of the burden can and should matter when defining the scope of the religious freedom privilege.

Now that we've identified three essential criteria that must be defined to answer the constitutive question, let's return to the invitation email. 

Unfortunately, today there is great pressure to narrow the concept so that it includes little more than religious worship.
Equality and discrimination norms increasingly label religious protections as contrary to public policy.
Some favor an outright rejection of the concept of religious freedom claiming that rights of speech, assembly and the press, which apply equally to all organizations, are adequate precisely because any additional protections in favor of religious persons and religious organizations are discriminatory.

I think this depiction of one of the arguments against favoring religious organizations is fair. However, there may be some merit to the evolving norms referenced. Certainly not all eighteenth century Constitutional norms are desirable (e.g. the lack of status of women and slaves), and indeed the harms free exercise was designed to mitigate may have shifted in a way that merits a directional change in interpreting the clause. In a zeitgeist where governmental/religious entanglement proved the most salient danger, the prohibition against favoring a particular religious establishment merited specific attention.

However, the cultural milieu which gives birth to oppressive behaviors has changed significantly. Past prejudices disproportionately targeted categories such as Jew, woman, and Black. Atheists, Muslims, and gays [in that order] now lead the charge in capturing society's vinegar. For instance: all else being equal, an atheist is about 8 times as likely to be rejected as a presidential candidate than a Jewish person.

SCOTUS's Justice Souter wrote: "government should not prefer one religion to another, or religion to irreligion." Given religion's gains over the last couple centuries and the deep cultural prejudice against the irreligious, is that latter juxtaposition perhaps now deserving of a greater relative share of attention?

An analogy to Affirmative Action schemes is relevant here. Though clearly discriminatory, affirmative action quotas can help to level an unbalanced playing field. Once the underdogs are on equal footing, though, their subsidy should cease. Given the robust legal and cultural safeguards in place to protect religious exercise and religious institutions, it may be time now to cease singling out activities and entities deemed religious for special privilege over irreligious activities and entities.

In this battle over the meaning of religious freedom, historical arguments are being amassed suggesting that our Founding Fathers desired a “Godless Constitution.” Making this case, a scholar recently titled his book “The Myth of American Religious Freedom” because laws have historically favored moral conduct when by design the government should be amoral, giving no preference to conduct founded in religious tradition.

The battle over the meaning of religious freedom is thus shifting subtly as religious protections are labeled discrimination and preferential treatment of religion is decried as unequal. Unless we fully understand the meaning of religious freedom, we are in danger of losing this most cherished “First Freedom” of our Bill of Rights as it is inexorably defined away, leaving little left to be protected.

This argument relies on four logical fallacies: (1) the straw man argument, (2) non sequitur, (3) failure to state, and (4) argument from popularity.

First, the argument depicts Mr. Sehat asserting that the government should be amoral by design, and that the Founding Fathers wanted a Godless Constitution. In contrast to that depiction, Michelle
Deardorff proposes a fairer summary of the scope that work:

"David Sehat’s book, THE MYTH OF AMERICAN RELIGIOUS FREEDOM, is an engaging exploration of the continuous and seemingly irreconcilable debates over the meaning of the free exercise clauses found in the federal Constitution and in numerous state-governing documents. An intellectual historian, Sehat argues that many of our current debates between the political left and the right, particularly the Christian right, are situated in both groups’ mythologizing the Founding and the free exercise clause, as well as in their interpretation of religious liberties. Ask any schoolchild or most educated adults about the origins of our nation and most Americans will reply that a group of colonists, persecuted for their religious beliefs and practices while in Europe, came to the New World seeking religious liberty. While they initially preserved their own religious beliefs, they soon came to believe that their sole salvation would be in the protection of the religious beliefs of all. In the retelling of this myth, conservatives focus on the centrality of personal religious belief in this narrative and liberals emphasize the emergence of liberty of individual thought. THE MYTH OF AMERICAN RELIGIOUS FREEDOM argues that not only are both versions, and most Americans, wrong with their iterations of history, but that these competing myths can be traced back to the late Eighteenth Century and through the intervening decades. Because political adversaries are using identical language to convey vastly different ideas, the conflict between them is inevitable and dramatic. Sehat contends that if there was a more accurate understanding of the notion of “religious freedom” as it was initially conceived and if both parties understood the suppositions beneath their contentions, at a minimum, a more civil discourse could emerge and ideally we would generate a better understanding of our own history of religious conflict."

Second, the assertion relies on the proposition that preferring conduct founded in religious tradition is necessary for a moral government. This is a non sequitur, as religions do not enjoy a monopoly on morality and moral governments can exist bereft of a preference for conduct founded in religious tradition. Additionally, the argument asserts the necessity of understanding the meaning of religious freedom to avoiding the risk of losing the same. However, it is possible to prevent that loss without a full understanding, and in any case even a full understanding is insufficient to prevent the risk, as it may well be the case that the narrower construction of religious freedom asserted by the opponents of preferential treatment matches and preserves the meaning of religious freedom, fully understood. To assert that a broader construction is the full meaning is to beg the question (I guess that brings the fallacy total to five): the thing to be proved is used as an assumption.

Third, though the argument knocks down the straw man it erected, it constructs nothing in its stead. Concluding that there is a need to understand the meaning of religious freedom may be necessary to avoid its loss, but pointing out the need is insufficient. Without establishing the affirmative case, how will we know whether or not religious freedom is lost?

Last, the argument appeals to the presumed bias of the largely LDS audience: even if the audience similarly decries the inexorable loss of a cherished freedom caused by the godless's unfortunate labeling activity, popular does not equal right. Bloodletting was quite popular and revered, but also dead wrong (in addition to deadly).

I think a more interesting argument revolves around the relative benefits religious organizations offer, and how to allocate the cost of privileging the generators of those unique benefits.
For instance, there is a basic liberty value in allowing people to take up whatever hobby they want. However, the shoplifting enthusiast, anti-poverty activist, and rugby fan do not all contribute value equally to society through their hobby activity. There is a reasonable basis for curtailing the shoplifter's hobby, and for rewarding the anti-poverty activist.

Why should our state and federal judges privilege religious organizations over irreligious ones? Are the beliefs of Peace Corp disciples or the practices of Apple adherents less deeply held, or perhaps less beneficial, than that of Catholic ministers? Is the activity of Twilight fans or the NRA less valuable than the contributions of Sikhs or the Baptist church?

We might also ask: is f
avoring religion over non-religion necessary to elicit the unique benefits of religious activity? Compared to equally treating religion and non-religion, are the cost-benefit tradeoffs net positive?

This Discussion Series Lecture by Professor Smith will seek to clarify the definition of religious freedom so that its full meaning may be preserved.

Once again, the argument begs the question. Barely one sentence ago, criticism was leveled at the act of defining, namely the defining acts that constrict, rather than contract, the magnitude of religious freedom. The solution to the problem of identifying the proper magnitude of religious freedom cannot then merely be whatever definition leaves a lot to be protected. Criticizing the opponent's act of definition, then proposing the act of definition to resolve the question, only works if you assume what you set out to prove: specifically, that a definition broader than the opponent's is the correct one.
I have spoken with two BYU Vice Presidents and multiple actors from the International Center for Law and Religion Studies (including it's Director, W. Cole Durham) on the subject of religious freedom at BYU. None of these interlocutors seemed particularly exercised by the fact that LDS BYU students must choose between following the dictates of their consciences to convert on the one hand, and retaining the ability to enroll, graduate, and have their degrees post on the other. Were Brigham Young to follow his conviction to take on additional spouses while managing LDS facilities, he could not contest his own subsequent employment termination. Were Joseph Smith to have his First Vision while a LDS BYU junior, he could not himself graduate.

The ICLRS invites the world to convene on the campus of the very school that would unceremoniously withhold an otherwise earned diploma because a student answered the call of Islam to follow Allah.  That none of these well-informed men detect a level of hypocrisy in convening a discussion series that endeavors to define and preserve the meaning of religious freedom makes me wonder: am I missing something? Perhaps I am alone in the perception that the Emperor is showing just a little too much skin.

Just the same, I look forward to his speech.

The Religious Freedom Discussion Series is sponsored by the International Center for Law and Religion Studies at Brigham Young University, J. Reuben Clark Law School.

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