Though he dedicated most of his professional career to the courts, Latter-day Saint apostle Dallin H. Oaks argued Friday that when disputes arise between religious freedom and nondiscrimination, the best remedies are found not through litigation but through legislation.
”Courts are ... ill-suited to the overarching, complex and comprehensive policymaking that is required in a circumstance like the current conflict between two great values,” Oaks, a former attorney, law professor and Utah Supreme Court justice, said in a speech at the University of Virginia. “Notwithstanding my years of working with judicial opinions, I prefer the initial route of legislative lawmaking on big questions.”
That will require some compromises and earnest talks between competing parties, said Oaks, first counselor in the governing First Presidency of The Church of Jesus Christ of Latter-day Saints.
“People of faith should not contest every nondiscrimination law or policy that could possibly impinge, however insignificantly, on institutional or individual religious freedom,” he said in a transcript provided of his address. “Likewise, proponents of nondiscrimination need not contest every religious freedom exemption from nondiscrimination laws. The goals of both sides are best served by resolving differences through mutual respect, shared understanding and good faith negotiations.”
Oaks pointed to two negotiated, church-backed measures from the Beehive State that he said struck a better balance. In 2009, Salt Lake City adopted protections for LGBTQ individuals from discrimination in housing and employment. Six years later, Utah enacted a breakthrough compromise that also provided these protections while shielding some religious liberties.
“While the law gave neither side all that it sought,” he said, “its reconciliations did grant both sides significant benefits — a win-win outcome — that could not have been obtained without the balancing of interests made possible by the dynamics of the legislative process.”
Oaks said “good faith negotiation invites that seldom-appreciated virtue so necessary to democracy: tolerance, free of bigotry toward those whose opinions or practices differ from our own.” He noted, however, that “learning to live with significant differences requires much more than tolerance. ... Obviously, followers of Christ also have a duty to seek harmony. Where there are conflicts, all should seek peace.”
A longtime champion of faith freedom who won the 2013 Canterbury Medal from the religious liberty law firm Becket, Oaks began his Joseph Smith Lecture on the historic Charlottesville campus by expressing his distress at “the way we are handling the national issues that divide us” while calling on Americans to “accept some laws we dislike, and to live peacefully with some persons whose values differ from our own.”
One decision the Utah-based faith didn’t like was the U.S. Supreme Court’s landmark legalization of same-sex marriage in 2015. The church voiced its displeasure at the time but, as Oaks reaffirmed Friday, institutions and citizens “must accept and respect the rule of law.”
Thus, after the high court’s ruling, Oaks criticized a county clerk in Kentucky who invoked religious reasons to justify her office’s refusal to issue marriage licenses to same-sex couples.
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“All such officials take an oath to support the Constitution and laws of their jurisdiction,” he stated. “That oath does not permit them to use their official position to override the law to further their personal beliefs.”
Lamenting a society already enduring “too many ugly confrontations,” the 89-year-old leader, who is next in line to lead the world’s 16.6 million Latter-day Saints, urged institutions and individuals to listen more and lash out less.
“We need to work for a better way — a way to resolve differences without compromising core values,” Oaks said. “We need to live together in peace and mutual respect, within our defined constitutional rights.”