Free Exercise of Religion…and Sex

In the recent talk by Elder Oaks to BYU-I addressing the topic of the constitutional right to free speech and free exercise of religion, he also noted the establishment clause of the first amendment.

The prohibition against “an establishment of religion” was intended to separate churches and government, to prevent a national church of the kind still found in Europe. In the interest of time I will say no more about the establishment of religion…

The difficulty with this omission was evidenced in the reaction to his speech. Many of the debates about the place of religion in public life tend to focus on either free exercise or the establishment clause, to the detriment of the other. Religionists, as in the case of Elder Oaks, tend to emphasize free exercise, while secularists tend to emphasize disestablishment. Each views the other as a threat, and Oaks’ overlooking of the limitations of the establishment clause in relationship to free exercise plays into the fears that those who emphasize the role of religion in public do so at the expense of the establishment clause.

The interesting thing about free exercise of religion and disestablishment is the way that they’ve been taken up recently by advocates of sexual reform. In Love the Sin, Janet Jacobsen and Ann Pelegrini make the argument that sexual freedom is best based on both the free exercise of religion and disestablishement clauses, rather than appeals to fundamental rights and calls for “tolerance.” In making this comparison by analogy, the authors argue that sexual freedom, like religious freedom, is a freedom based on practices, not necessarily immutable identity. At the same time, and for similar reasons as the disestablishment of religion, the authors call for the disestablishment of (hetero)sexuality. The connection between public religion and public sexuality is intense, as those who generally argue for the importance of religion in the public square have in mind matters related to sexuality, not matters of, say, economic justice like the Catholic workers movement, or the Catholic Bishop’s 1999 statement on debt forgiveness when it comes to foreign policy.

The immediate value of this comparison is clear. Just as one is free to practice their religion, so one is also free to practice their sexuality; and just as one the government does not promote one religion over another (in theory, at least), nor should it promote one sexuality over another. One might also apply a similar test for restrictions on sexual freedom as those in case of religious freedom, namely, a compelling state interest. For instance, there is a compelling state interest against sexual violence or abuse, just as religious violence. While some may argue that banning gay marriage does constitute a compelling state interest, this argument would require substantiation. Just as one might say that the public service of Jehovah’s Witnesses constitutes a state interest, it does not qualify as a compelling state interest that would overrule the free exercise of religion. Gay marriage might similarly be protected, the authors argue. The authors argue for simultaneously an increase in the free exercise of religion, which they see as only possible through a more thorough disestablishment, and by analogy an increase in the free exercise of sexuality, which is also made possible through disestablishment.

In reading this argument, I was intrigued by its possible implications, and would like to further explore the strengths and weaknesses of the argument and the analogy. In what way might Elder Oaks’ emphasis on religious freedom serve as a model for the sexual freedom he opposes? Does the robust notion of religious freedom that Oaks puts forward actually work against his claims by giving greater ground to a notion of sexual freedom? Does the overlooking of the establishment clause fail to make the case for why the government should make policy decisions based on religion, or why the government should establish one form of sexuality or another? Is thinking about Prop 8 in terms of the free exercise of religion a mixup, when establishment of religion (and sexuality) is the real issue at stake?

15 Replies to “Free Exercise of Religion…and Sex”

  1. Just as one is free to practice their religion, so one is also free to practice their sexuality; and just as one the government does not promote one religion over another (in theory, at least), nor should it promote one sexuality over another.

    I don’t see religious freedom and sexual freedom as being on par with each other at all. One was clearly stated as a right and protection established by the founding fathers. The other is something that those pushing current philosophical trends are trying to interpret into the Constitution –two very different things, imo. I think Elder Oaks’ focus on the Constitution is critical to this conversation and does not receive enough attention by those who want to suggest that somehow sexual freedom (whatever that means) is as fundamental to our Constitutional rights as religious freedom.

    Besides, prop 8 doesn’t restrict sexual freedom, it simply holds to what marriage has always been, and upholds the democratic process allowing the people the right to vote on such a significant thing. Those who aren’t married still have rights to live sexually as they please (minus extreme exceptions, of course, such as polygamy, pedophilia, etc. — but how quickly those things could be embraced as ‘sexual freedom’ imo!) And people are free to vote based on their sexual preferences, as well. Their ‘sexual freedom’ is not inhibited by things such as prop 8.

    To me, what these authors are trying to do is bypass the democratic process and simply declare sexuality as something that no one can touch or have opinions about, or something that cannot have any moral underpinnings at all. Which, by definition, would remove religion from the table, and essentially would silence those for whom sexuality has a fundamental place in their religious belief. It would threaten institutional freedom to hold to and teach standards as well. You cannot, imo, go to the extremes of sexual freedom that these authors seek w/o violating basic Constitutional rights of freedom of religion AND speech.

  2. Yes, that quote in particular jumped out at me.

    If he’s going to call atheists “hostile” and “aggressive” for claiming the right to freedom from religion, then he really should have clarified what he thinks the establishment clause means. After all, Mormons have been involved in at least one court case claiming freedom from having someone else’s religion (in the form of sectarian Baptist prayers) imposed on their kids. So, does Oaks think the Mormons in that case were making a hostile attack on the Baptists?

    Probably not, but the interplay between the establishment clause and the rest of the first amendment was a critical point of his argument, so he shouldn’t have glossed over it.

  3. “One was clearly stated as a right and protection established by the founding fathers.”

    Artilce 9:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    The founders did not intend for the bill of rights to be an exhaustive list of rights (they dedicated an entire amendment to idea). They assumed that our ideas about freedom and liberty would evolve and develop over time. They were optimists in this way.

  4. m&m,

    I do not think that Elder Oaks is arguing (or even could argue) that gay marriage (or sexual freedom) are undermining the freedom of religion. It is the backlash against Prop. 8 and LDS participation that is the problem. The first amendment protects both advocates and opponents of gay marriage.

  5. TT,

    I agree that the liberty behind the prinicples laid out in the first amendment is very much the liberty that brings us the diversity in sexual life styles. Give people liberty, they will often use it is ways that others do not like (whether that is being gay or being Mormon).

    In many ways the argument that Elder Oaks is making is a political one and not a religious one. Religious peoples have a right to be reasonable participants in the democratic public sphere. In many ways this is more closely related to the 14th and 15th amendments than it is the 1st (though they are closely related themselves).

  6. TT: There aren’t any rights — basic or otherwise — to have sex. “Sexual freedom” is simply not protected per se. There are rights to kinds of associations and relationships such as marriage. There is a right to privacy which protects folks against intrusion by the government into certain kinds of practices including certain kinds of sexual practices. However, the scope of these other rights cannot be taken to be a right to live any certain kind of sexual lifestyle or a right to have sex with just anyone or anything. What is protected is privacy, not sexual freedom.

    Further, the notion that Elder Oaks has to address the Establishment Clause limitations on the state involvement in religion when discussing the threat to religious freedoms from punitive actions taken against Mormons in connection with support of Prop. 8 seems really strange to me. Just how is the establishment clause relevant to addressing issues of religious freedom under attack by firing, boycotting or publicly ridiculing those who supported Prop. 8?

  7. Chris, (#4)

    I agree that Oaks did not seem to address the idea that sexual freedom would threaten religious freedom, but he certainly declared that gay rights, even religious rights for gays, threaten the religious rights of Latter-day Saints. And he admonished his listeners to resist such rights in cases where governments would impinge upon LDS religious freedom.

    Oaks: “Religious freedom needs defending against the claims of newly asserted human rights.”

    In the text that follows, Oaks specifically references Principle 21 of the Yogyakarta Principles (further discussion at my blog). Principle 21 is “The Right to Freedom of Thought, Conscience and Religion” (for LGBT persons). But he is most likely speaking here of the “newly asserted” religious freedom of same-sex marriage which, he fears, could be mandated by the State, over the objection of some religions.

  8. Thanks all for the comments. Just to clarify something that perhaps wasn’t totally clear in my summary of Jakobson and Pellegrini. They were not making a legal, jurisprudential claim that the constitution guarantees the freedom of sexuality. Rather, they were making a normative philosophical claim for how sexuality should be thought of. They critique “privacy” as a sufficient protection for sexual freedom because what is “private” for heterosexuals, such as a kiss on a street corner or park bench, is considered “public” for people of other sexualities. They argue that sexuality should not be thought of in terms of “civil rights” or “privacy” as the issue has currently been framed, but suggest the pluralism of religious freedom and disestablishment as a better philosophical basis on which to make the case for sexual freedoms. In this way, making claims about the status quo interpretation of the constitution or the framers intent are off base to engaging the argument they are making.

    As for whether or not Oaks should have addressed the establishment clause on this occasion, this is not my place to say. I have suggested that part of the negative reaction to his speech is that he didn’t address it. Given that establishment and freedom of religion are generally seen as oppositional notions in contemporary discussions, and that the opposition that Oaks speaks of does not see itself as opposing LDS freedom of religion, but rather the establishment thereof, Oaks’ choice to not speak of this issue raises questions about whether or not he understands the nature of the opponents’ position and concerns about LDS involvement on this issue.

    Perhaps the problem of the conflict between establishment and freedom of religion in the contemporary scene has to do with the way that we have framed the issues.

  9. Shoot, I forgot to address the question of the “right to sex” as a guarantee that one will have sex. Certainly this is not what is meant by sexual freedom, anymore than that the freedom of religion guarantees that God answers your prayers. Rather, sexual freedom is more along the lines of the right to pursue happiness.

    agreed that the interplay between freedom and establishment dominants the way debates about religion in the public square are framed, and the overlooking of dealing with this balance opens him up to the critique that he doesn’t see a balance, whether or not that is actually the case.

  10. The problem is that the very involvement of government in marriage already is going against both your principles. Marriage is, for most, intrinsically religious. And marriage is for most, intrinsically tied to sexuality and our sexual identity. There’s no way to say there is freedom and simultaneously say we have to get permission from the government to do it. So I think the whole discussion is off to a bad dichotomy from the start.

  11. To add, as I’ve said before, I think Elder Oak’s argument can be extended to political liberty in general. (Arguably one of the more precious liberties in terms of state) If people can persecute others in terms of political debate then the very core of our democracy is at risk. How would any of you feel if people published the addresses of people’s homes, organized boycotts and the like just because they happened to vote Democrat or donated money to the Democratic party? I think any of us would be up in arms were we to hear of that. There are just some things that in a Democracy must be protected.

  12. Clark,
    I am not sure I buy your argument that government’s involvement in marriage is a breach of the establishment clause. Marriage is a symbol, and symbols have multiple meanings. A symbol’s meaning may be tied to its history, but meanings change. There is nothing inherent to any symbol, but only what we interpret it to mean.

    While one may claim that marriage is a fundamentally religious symbol, in practice this simply isn’t the case. Marriage is, from the perspective of the state, a primarily social and legal symbol. To the extent that one wishes to intrepret this symbol religiously is of course their own business, but that the state engages in recognizing this symbol in a legal and social way does not mean that the state is engaged in religious activity.

    As for the supposed conflict between “freedom” and “permission from the government,” I am not sure that I agree that one cannot say that they are the same. That the state recognizes religious organizations in a particular legal category of non-profits, would, by your analogy, suggest that I do not have the freedom of religion because the government legally recognizes only those religions which have filed the proper paperwork.

    In terms of the final remark about political liberty, I am also not sure that I follow. Of course, one is free to vote in whatever manner they wish, and one is free to say that those who voted another way are wrong. In partisan politics, as we’ve seen, these issues frequently become contentious, rancorous, and tea-party-ish all the time. I don’t see the idea of protests of one’s opposition per se as a threat to liberty, but rather the contrary claim that one should not protest as a greater threat. In terms of donating money, this information is already published. Unless you are arguing for a return to secret contributions (which I see as fundamentally anti-democratic), you describe the status quo of public records information.

    Now, you’re not going to get an argument from me that the post-Prop 8 protests were a political and ethical mistake, and I’ve argued as much here and elsewhere, but I am not sure that they present a threat to political or religious liberty in any demonstrable way.

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