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.