“The free exercise clause accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual’s control.” Why this is not only beautifully worded but also of deep meaning:
I have been speaking to those for whom religious faith—to one degree or another—is the key to their human dignity. In recent years our society has increased its recognition that many look on race and gender, including sexual orientation, as a basis of their human dignity. As these other bases have been accommodated in the law, some have placed freedom from discrimination on these grounds above the constitutional guarantee of free exercise of religion. [Footnote #18.] The collision of these two values is the cause of many of the so-called “cultural wars.” These conflicts inevitably undermine the kinds of mutual support and collaboration of the judiciary and communities of faith that we are seeking in this conference.
Having given some advice to the religious side, I also have some suggestions for those who have other keys to or nonreligious values for their human dignity.
First, please respect the laws that provide unique protections for believers and religious institutions, and please accept the fact that this grants religion an honorable place in our public life. Most notable is the uniquely positioned First Amendment in the Bill of Rights, which singles out the “free exercise” of religion for special protection, along with free speech, free press, and freedom of assembly. This favored constitutional status that a unanimous United States Supreme Court recently described in part as “special solicitude to the rights of religious organizations” [Footnote #19] should be acknowledged in all controversies over the meaning of “free exercise” and how to balance it against contrary cultural preferences.
Surely this unique constitutional guarantee of the “free exercise” of religion was intended to grant unique protections to those acting in accordance with religious belief. This was intended in our nation’s founding. As Professor Michael McConnell has observed, when the First Amendment was drafted, several formulations were considered, the two final ones being the protection of “rights of conscience” or the “free exercise of religion.” [Footnote #20.] The ultimate “choice of the words ‘free exercise of religion’ in lieu of ‘rights of conscience,’ is,” as Professor McConnell notes, “of utmost importance.” [Footnote #21.] First, it made clear that the First Amendment protected more than just belief. It protected action in accordance with belief. [Footnote #22.] Second, while “conscience” emphasizes individual judgment, “religion” also encompasses the “institutional aspects of religious beliefs.” [Footnote #23.] Finally, the framers’ preference for “free exercise of religion” over “rights of conscience” means that religiously based scruples are given more solicitude than nonreligiously based ones. As the framers thoughtfully reasoned, “The free exercise clause accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual’s control.” [Footnote #24.]
Treating actions based on religious belief the same as actions based on other systems of belief is, therefore, not enough to satisfy the special place of religion in the United States Constitution. Understanding this reality is important to advancing this conference’s purposes to further mutual understanding, edification, and collaboration.
[Elder Dallin H. Oaks, “The Boundary Between Church and State“, Second Annual Sacramento Court/Clergy Conference, Sacramento, California, Tue 20 Oct 2015.]
We don’t have to agree on anything in order to be kind.
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