PROVO — The top lawyer for the LDS Church proposed Thursday that people of faith should prioritize the defense of an innermost core of religious freedoms.
They also have to be willing to compromise on freedoms outside that core, said Elder Lance B. Wickman, general counsel for The Church of Jesus Christ of Latter-day Saints and an emeritus General Authority Seventy.
"Please understand that in labeling some freedoms part of the 'core' of religious liberty, I am not suggesting that freedoms outside that core are unimportant or not worth defending," Elder Wickman said.
"What I am suggesting is that if we want to preserve religious freedom and live in peace in a society that is increasingly intolerant of faith, then we will have to be very clear about what matters most and make wise compromises in areas that matter less. Because if we don’t, we risk losing essential rights that we simply cannot live without."
Elder Wickman suggested a hierarchy of religious freedoms to an overflow audience of more than 300 in the BYU Conference Center during the university's third annual Religious Freedom Annual Review. The two-day conference drew experts in law and religion issues to provide an up-to-the-minute review of important developments in religious freedom law.
Speakers shared demographic and political trends that describe a decline in religiosity and support for religious institutions. "Religious liberty in America is in a troubled state," said Thomas Berg, a law and public policy professor at the University of St. Thomas.
Elder Wickman assigned various religious freedoms to concentric circles.
The innermost core are basically non-negotiable, he said, and include personal belief and family worship and teaching, the free exercise of religion in public, including missionary work, and autonomy for churches in their internal affairs, such as establishing church doctrine, selecting leadership and determining membership.
The core includes the right of believers to the same free speech and expression in the public square as non-believers, he said. Believers also have the right "not to be punished, retaliated against or discriminated against by government based on religion" or to face a religious test for professions regulated by government.
Finally, the core includes protecting the nonprofit status and operation of religious organizations.
"Unless that core is strongly protected, there is no religious freedom as Americans have known it," Elder Wickman said. "These freedoms are essential to individual believers and their families in their private lives."
Extending out from the innermost core, Elder Wickman described three additional circles. Near the core in the next circle, and vitally important, he said, are freedoms that pertain to the religiously important, nonprofit functions of religious organizations, such as the right to hire based on religious criteria.
For example, the LDS Church has a temple recommend standard for church employment. The right to establish religious schools, colleges and universities is near the core, too, including the freedom to establish student honor codes that reflect religious teachings. Religious charities also should have the right to operate according to their beliefs.
Commercial settings make up the third circle, labeled "moving beyond the core" by Elder Wickman. Here, he said "our expectations of unfettered religious freedom must be tempered."
"Businesses should not be forced to produce products or types of services that fundamentally conflict with their religious beliefs," he said, but secular businesses are limited by longstanding regulations and civil rights. This is a place to make prudential compromises, because a religious person's business is not able to reflect religious beliefs the same way a home or congregation can.
"Preserving the ability of business owners to conduct every aspect of their businesses according to their religious beliefs will be impossible," he said, "And the church itself is not in a position to fight that fight if doing so comes at the expense of more core religious freedoms. Protecting those core freedoms must remain the priority, or we risk losing even them."
Elder Wickman labeled the final category "the outer circle," where "claims for religious freedom are much weaker and will be very difficult to defend." Here, religious beliefs should be reasonably accommodated for religious dress, Sabbath observance and in the area of government services for example, but a county clerk may need to perform marriages contrary to her religious beliefs if no one else can easily take her place.
The president of an umbrella group for Mormons, evangelicals, Catholics and other faith groups working together on religious freedom issues said he continues to believe that the Utah Compromise is an example other states will follow.
The compromise, backed by the LDS Church and referred to Thursday by Elder Wickman as an example of seeking fairness for all, protected gays from discrimination in employment and in housing. It also protected religious people from being forced to violate their religious consciences.
"Eventually, I think you're going to see more Utah Compromises," said Tim Schultz, who has worked with 30 state legislatures as president of the 1st Amendment Partnership.
When states have tried to pass laws that only protect religious freedom, they have faced overwhelming opposition from LGBT groups, media outlets and major corporations, Schultz said. When protecting religious freedom is balanced with making it illegal to discriminate against lesbians, gays, bisexuals and transgender people, those same groups have been supportive.
Utah Valley University President Matthew Holland said that respect for the American founding is also on the retreat among U.S. elites. Still, he said, as secularism grows, its proponents find it harder to dismiss the founding than religion. The founding therefore remains useful.
He said many examples from America's beginnings show that what he called "religiously inspired visions of what was morally right" helped establish individual liberty, the elimination of the transatlantic slave trade and other cherished successes.
"Helping non- or less-religious audiences see things like this hardly solves all problems," Holland said, "but it does make it more difficult to simply dismiss religion as either too pointless or too poisonous to be given any special status in the law, as some would like to do."
A transcript of Elder Wickman's talk is available at mormonnewsroom.org/blog.
Video, audio and transcripts from the 2015 review are available now at religiousfreedom.byu.edu. Full video and audio of Thursday's and Friday's talks, panels and workshops will be posted within two weeks.