Understanding the Mormon ‘Approach’ to Gay Marriage

L ast Tuesday evening, I was flooded with texts and phone calls asking me if I’d heard that my church, the Church of Jesus Christ of Latter-Day Saints, had endorsed the widely discussed Respect for Marriage Act. Conservative commentators around the country promptly piled onto church leadership, accusing them of being weak-kneed appeasers of the insatiable mob. But as I combed through the brief statement myself, it did not read to me the way commentators and news outlets across the country were suggesting. The statement reads, in part:

“We are grateful for the continuing efforts of those who work to ensure the Respect for Marriage Act includes appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters. We believe this approach is the way forward.” (Emphasis mine)

To me, this statement is not an endorsement of the Respect for Marriage Act’s provisions but of its process, in which members of religious and LGBTQ communities come together in good faith to discuss and develop policy solutions agreeable to both sides.

This is precisely what President Dallin H. Oaks, a member of the Church of Jesus Christ of Latter-Day Saints First Presidency (the presiding body that oversees policy and doctrine of the church), described in a speech given at the University of Virginia last year. The speech, “Going Forward with Religious Freedom and Nondiscrimination,” given as the 2021 Joseph Smith Lecture, is well worth reading.

Many who are unfamiliar with the church may be surprised to know that its leaders are not career clergymen, but work in ordinary professions before being called to serve as apostles of the church. Prior to becoming an apostle, Dallin H. Oaks led a remarkable legal career. After graduating top of his class from the University of Chicago Law School, he worked as a law clerk for Supreme Court Justice Earl Warren. Afterwards, he returned to academia, working as a law professor and associate dean at the University of Chicago and later BYU. He was then appointed to the Utah supreme court in 1980 and was on President Gerald Ford’s short list to fill Justice Douglas’s vacancy on the United States Supreme Court. Yet in 1985, he chose to cut his legal career short when he was asked to serve as an apostle for the Church of Jesus Christ of Latter-Day Saints. President Oaks’s unique experience as both a devoted student of the law and as a leader of one of the Country’s largest religions has led him to think deeply about untangling the Gordian knot of religious liberty and nondiscrimination laws.

In his remarks — which he described as “the most difficult address I have ever undertaken” — President Oaks laid out what he believed to be the best path forward: stop relying on the Courts to resolve these issues, and instead come together in good faith to reach policy compromises agreeable to all sides to be voted on in the legislature. While we often think in terms of particular outcomes, President Oaks suggests that our goals will be best served by focusing more on the process.

These days, conservatives are quite bullish on their prospects before the Supreme Court. But there are reasons to believe this approach is misguided in the long run. For starters, we have no idea how long this conservative supermajority on the court will last. At the end of President Biden’s term, Clarence Thomas and Samuel Alito will be, respectively, 76 and 74 years old. Once they are gone, it is entirely possible that the conservative party at the court steps will be over, perhaps setting the stage for Justice Sotomayor’s revenge. And let us not forget that one of the most despised cases in religious-freedom circles, Employment Division v. Smith, was authored by the conservative darling Antonin Scalia. This is not to say that there is never a time or place to petition the courts for redress, but it is apparent that bigger courts have made smaller citizens. And by abdicating our role in reaching compromises and crafting wise public policy amongst ourselves, we ensure that some higher power will instead make the choice for us — for better or worse.

The Church of Jesus Christ of Latter-Day Saints has tried to lead by example on this front. In 2009, an ordinance was proposed in Salt Lake City that generated a head-to-head conflict with religious-freedom and nondiscrimination laws in housing and employment. The church chose to reach out to nondiscrimination advocates and invited them to come together and discuss their differences. In their efforts to understand each other’s positions and priorities, the two sides were able to craft a compromise that both could endorse for their community. Their proposals were ultimately passed in 2015 in what is known today as the Utah Compromise, one of the few examples of successful policy compromises between the religious and LGBTQ communities in our nation’s history.

Now, obviously, many pundits across the spectrum nitpicked specific provisions of the legislation, and many others believed that it was downright awful. But the important lesson to be gleaned from the Utah Compromise is not found in the bill’s text. It’s found in the process, which provided proof that the religious and LGBTQ communities do not have to operate in a zero-sum universe, and that with good faith, we can find common ground.

Such an approach feels uniquely American. As a student of our nation’s history, I often reflect on the miracle of the Constitutional Convention. With such vast and seemingly irreconcilable differences between the several states, many of the framers believed their enterprise was doomed to fail. Yet in the midst of one of these stalemates, the elderly statesman Benjamin Franklin imparted his characteristically folksy wisdom: “When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. In like manner, here, both sides must part from some of their demands, in order that they may join in some accommodating proposition.” Later, as he reflected on the convention’s unlikely success, George Washington considered it to be “little short of a miracle” that so many competing interests were able to set aside their differences to “unite in forming a system of national government.”

It is this that the Church of Jesus Christ of Latter-Day Saints is endorsing. The idea that the spirit of the Constitutional Convention can still work today; that seemingly irreconcilable differences can be transcended through good-faith discussions; and that it is our duty as citizens to take our apprenticeship of liberty seriously — recognizing our responsibility to come together to figure out how to live together.

This constitutes an important reframing of the debate circling around the Respect for Marriage Act. Many — myself included — are concerned with many provisions in the bill. For example, the plain language of the bill provides no religious-liberty protections for individuals running for-profit businesses. And there are concerns that in the future, the bill could be used to jeopardize the tax-exempt status of nonprofit organizations who openly believe in traditional marriage (which is why I believe Mike Lee’s First Amendment Defense Act is a better starting point for religious-liberty protections). We should make our voices fully heard on those issues. But the more fundamental question we should ask ourselves is whether the approach of the bill — both sides coming to the table in good faith to reach compromise — is the right path going forward. I stand with the Church of Jesus Christ of Latter-Day Saints in believing that it is. And once we are all at the table, perhaps we’ll learn to beat our swords into plowshares after all.