The free exercise of religion, enshrined in the Constitution is in jeopardy and cries out for protection, Elder Dallin H. Oaks of the Quorum of the Twelve told the U.S. Senate Judiciary Committee June 23.
"There is nothing more sacred than a devout person's worship of God – nothing more precious than that person's practice of his or her religion," said Elder Oaks.He testified before the committee in support of Senate Bill 2148, the Religious Liberty Protection Act of 1998. The bill seeks to restore safeguards in the 1993 Religious Freedom Restoration Act that were struck down by the Supreme Court last year.
"With the abandonment of the `compelling governmental interest' test in the case of Employment Division v. Smith, the Supreme Court has permitted any level of government to enact laws that interfere with an individual's religious worship or practice so long as those laws are of general applicability, not overtly targeting a specific religion.
"This greatly increased latitude to restrict the free exercise of religion must be curtailed by restoring the compelling governmental interest test," declared Elder Oaks.
In his testimony, Elder Oaks said that government should be required to have a "compelling interest" before passing laws that interfere with the free exercise of religion.
In endorsing Senate Bill 2148, sponsored by Sens. Orrin Hatch of Utah and Edward Kennedy of Massachusetts, Elder Oaks said he was presenting the Church's official position.
"The history of the Church . . . illustrates why government should have a `compelling interest' before it can pass valid laws to interfere with the free exercise of religion," Elder Oaks told the Judiciary Committee. "No other major religious group in America has endured anything comparable to the officially sanctioned persecution imposed upon members of my church in the 19th Century by federal, state and local governments."
He added that Mormons were driven from state to state – sometimes by direct government action – and finally expelled from the nation's existing borders, only to be persecuted anew when those borders expanded to include the Territory of Utah.
"This is not academic history to me," he said, explaining that various of his ancestors had lost their possessions, lost their lives, or been imprisoned in the anti-Mormon persecutions of the last century.
He cited the testimony of Prof. W. Cole Durham of BYU given recently to the House Judiciary Subcommittee on the Constitution. Prof. Durham testified on that occasion the Supreme Court's elimination of the "compelling interest" test is burdening religious freedoms in many areas, including land use discrimination, confiscation of tithing donations when donors suffer bankruptcy and unfair limitations on the time and place of religious speech and activity.
"The Bill of Rights protects principles, not constituencies," Elder Oaks noted. "The worshipers who need its protection are the beleaguered minorities, not the influential constituent elements of the majority." Though the LDS Church is among the five largest churches in America, it was once an obscure and unpopular group, and that is why it has special reason to call for Congress and the courts to support the bill, he explained.
"It is nothing short of outrageous that the Supreme Court currently extends extraordinary constitutional protection to words that cannot be found within the Constitution, such as the
right to privacy,' while abandoning the vitalcompelling governmental interest' requirement that is needed to ensure . . . the free exercise of religion," he said. "The fact that the Constitution has two express provisions on religion suggests that religious freedom was meant to have a preferred position, but the Supreme Court's Smith decision has now consigned it to an inferior one. That mistake must be remedied, and S.2148 is appropriate for that purpose."
Though the Church would prefer that the Supreme Court reverse the Smith case, the statutory reapplication of the "compelling governmental interest" requirement is a legitimate and necessary response to the circumstances described, he said.
Elder Oaks continued, "Religious organizations and religious worship and practices have been forced out of their constitutional sanctuary and into the public square, to be treated like every other organization and activity without unique constitutional guarantees. We appeal to Congress to use its legislative power to restore religion to its rightful sanctuary."
Elder Oaks previously testified on religious freedom before a Congressional Committee in 1993 when he spoke in support of the Religious Freedom Restoration Act.