21 February 2011

Oaks Rebutted, Summing Up

A few weeks ago Dallin Oaks, LDS apostle, spoke at Chapman University about the alleged encroaching restrictions on freedom of religious expression in the United States. As one would expect from any lawyer, he gave what he claimed were examples of his theme, in this case, how various individuals or organizations had lost jobs, promotions, business opportunities, scholastic standing, and even had legal penalties imposed on them as a result of saying or acting on a religiously based belief that homosexuality, or gay behavior, was wrong.

Well, I’m a lawyer too. I dig up and look at details and consider their implications, individually and collectively. And that’s what Oaks—or his research staff, at least—should have done before this speech. Oaks’ claims didn’t pass the smell test for me, so I started doing just what I’d been taught to do. Something I actually saw him do once, when I met him doing research at the BYU library and we spoke briefly about our respective projects.

And guess what, Elder Oaks. The truth of your examples is quite different from the picture you seek to paint. So as a graduate of the law school you helped to found, I’m going to give you the benefit of the training your colleagues gave me.

You’ve claimed elsewhere that because freedom of religion is at the front of the list of 1st Amendment rights, it is therefore more important and should trump the others in case of any conflict. It’s perhaps not surprising that you’d take this approach as an LDS apostle. But the Constitution of the United States is not a religious text. It’s a legal document, the result of hard-fought politicking and negotiation. And you know, Professor Oaks, the basic rules of legal interpretation.

A law must be interpreted to give effect to the actual words on the page and to avoid any absurd result. Nothing in the words of the 1st Amendment establishes any prioritization amongst the various rights listed there. The idea that religious belief must trump any of the other 1st Amendment rights just because it happens to appear first in a list--well that's just fiction. It has no basis whatsoever in the Constitution. If the context (e.g. paragraphing or actual language) does not so indicate, then it's absurd to think that just because something comes first in a statutory list, it's therefore more important than the things which follow. There are easy ways to show such intent, of course. But if no such intent is shown, you can't blithely assume priority just from the order of recitation. And there is no showing of any such intent in the Constitution.

You’ve sought to paint a picture of freedom of religious expression as under increasing attack in the United States. But thanks to the skills your law school taught me, I’ve seen for myself that your stories don’t mean what you claim. Once the details are investigated, it becomes clear that in every single instance, every one of your “examples,” something else was going on—something else that makes all the difference. Something else that shows those examples do not mean what you said. Yet you lined them all up, omitting these crucial details, as alleged examples of something that just isn’t so. My posts over the last week have shown in detail how this is true.

When you were president of BYU, you gave a talk about honesty, in which you said this:

An individual who conceals and misrepresents, however small the matter, sows the seeds of his own corruption. . . A lie is not always told in so many words. It may be a creature of concealment or a misrepresentation by action or a half-truth.

Of course, everyone falls short of perfection. And I try to be as tolerant of others’ foibles as I hope they’ll be of mine. But when a man purporting to be a “prophet, seer and revelator” and an experienced jurist goes out of his way to speak publicly about such a potentially momentous topic, and he chooses over and over to say things which investigation shows to be "half-truth" at best, that’s something entirely different. That's not just human foible. That's something deliberate.

So with all due respect, I’m calling you on it, Professor/Elder/Judge Oaks. By your own description, you’ve lied. And you need to fess up, retract, clarify, tell the whole story. And you need to apologize to those whose trust you have abused and forfeited.


Beck said...

I think I hear the applause of a standing ovation!

austin said...

Thanks, my limited investigation turned up similar, but nowhere near as thorough, results. It's good to have all the info!

Ned said...

I can imagine Oaks seething when he eventually see what you've written. I can also imagine him firing off an email (or having his secretary do it) asking the church membership department for your records, thinking that he'll see that you are subjected to disciplinary action for questioning the brethren. If so, he's going to have a surprise on his hands.
Congrats on a series of very well written responses.

David said...

Well rob I think your analysis is solid, but your conclusion is all wrong. Simply put, Elder Oaks should no longer be known as a judge or a good lawyer. He hasn't lied, he simply sucks at being a lawyer and should no longer be looked to for legal advice.

drakames said...

I have really enjoyed reading your posts in rebuttal to Elder Oaks' arguments. I know there have been times where I have wanted to look into the details of cited legal matters, but I have never known where to even begin. This has been both interesting and insightful, and I appreciate it. Thanks for putting this together!


T.J. Shelby said...

"My duty as a member of the Council of the Twelve is to protect what is most unique about the LDS church, namely the authority of priesthood, testimony regarding the restoration of the gospel, and the divine mission of the Savior. Everything may be sacrificed in order to maintain the integrity of those essential facts. Thus, if Mormon Enigma reveals information that is detrimental to the reputation of Joseph Smith, then it is necessary to try to limit its influence and that of its authors." - Dallin Oaks, footnote 28, Inside the Mind of Joseph Smith: Psychobiography and the Book of Mormon, Introduction p. xliii

Great work on Oaks blog series!

Ned said...

"...It's like trying to stop a fire
With the moisture from a kiss..."

I hope that if and when your comments finally reach Elder Oaks, that what's left of his rational, legal mind will shout "wake up!" and question him "You talk of integrity but what are you doing here?"

Congrats on a well written series. Please let us know if you get any feedback, push back, or a humble note thanking you, saying, "I finally woke up and smelled the coffee."

Not very likely, I realize. But thanks to Garth Brooks, I can site these lyrics as support of my hope that long shots and nonetheless possible.

One hand
Reaches out
And pulls a lost soul from harm
While a thousand more go unspoken for
They say what good have you done
By saving just this one
It's like whispering a prayer
In the fury of a storm

And I hear them saying you'll never change things
And no matter what you do it's still the same thing
But it's not the world that I am changing
I do this so this world will know
That it will not change me

This heart
Still believes
The love and mercy still exist
While all the hatred rage and so many say
That love is all but pointless in madness such as this
It's like trying to stop a fire
With the moisture from a kiss

And I hear them saying you'll never change things
And no matter what you do it's still the same thing
But it's not the world that I am changing
I do this so this world will know
That it will not change me

As long as one heart still holds on
Then hope is never really gone

I hear them saying you'll never change things
And no matter what you do it's still the same thing
But it's not the world that I am changing
I do this so this world we know
Never changes me

What I do is so
This world will know
That it will not change me

--The Change, by Garth Brooks

Pablo said...

Thanks again for this very well-done series of posts.

I understand David's point above, but I think he's being too generous. Sadly, it seems that Oaks' once sound legal mind has been compromised. I realize that he is not an active member of the bar (either in Utah or Illinois). But he has been a lawyer, a clerk to a US Supreme Court justice, a law professor, interim dean of a law school, a Utah Supreme Court justice, and was once on the short list of possible US Supreme Court nominees. Given that, we should have high expectations regarding his understanding of the law and his ability to present cogent arguments supported by facts.

If he read the cases he cited in his speech, he knowingly misrepresented the facts. That's called dishonesty. It's also called lying. If he didn't read the cases and instead relied on the almost certainly dubious summaries of groups like Focus on the Family or the Family Research Council, or summaries from poorly trained or untrained assistants employed by the church, Oaks still should have known that such information was unreliable, especially given his years of experience as a lawyer and judge who I presume has at least some understanding of the concepts of constructive knowledge, credibility and candor.

If someone without legal training had given that speech, we might be inclined to give him or her a pass. Oaks doesn't get a pass.

Alex said...

I found this. Elder Oaks responded to the LA Times questions. here
He admits that in the New Mexico case their civil rights may have been violated. I guess it's something.

ColleenDown said...

I stumbled on your blog from another site--it always helps me find peace when others put into words the thoughts that are turning over and over in my mind totally unorganized. Thank you for sharing yours, I look forward to reading more.

bradcarmack said...

Boldly stated! He has yet to acquiesce to your request, to my knowledge!

bradcarmack said...

Bold and much appreciated!