Notre Dame Sydney School of Law
Religious Liberty Lecture
Sydney, Australia
Wednesday, May 27, 2015
Elder Quentin L. Cook
Of the Quorum of the Twelve
Thank you for the invitation to be with you on this unique and special campus. I feel
honored to have the opportunity to address you on this extremely important subject.
I am grateful for my long relationship with your colleague, Dr. Keith Thompson. He is an
excellent lawyer and a man of character and integrity.
Three weeks ago I met with my friend Cardinal Timothy Dolan in his home next to St.
Patrick’s Cathedral in New York City. We had a very productive meeting part of which
was a discussion of religious freedom. I told him I would be speaking to you here in
Sydney.
I have met with Cardinal Dolan several times. On two occasions he hosted my
colleague, Elder L. Tom Perry, and me for breakfast in his home. It is always a joy to be
with him; he has a great Irish wit. During this last visit we laughed about an event that
followed one of those breakfasts. Cardinal Dolan was addressing a group of religious
leaders when he saw me in the audience. He stopped mid-sentence and said,
“Quentin, it is good to see you here; by the way we haven’t been able to find the
silverware since you came to my home for breakfast!”
I am grateful for the close association we have with Catholic leaders in the United
States and the friendship that allows us to work on common issues of mutual concern,
even though our ecclesiastical doctrine is different in many important respects. I hope
we can do that here in Australia.
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My purpose today is to review the progression of basic principles that have established
religious liberty as part of essential or inalienable rights - the fundamental right of each
individual to live according to his or her faith and beliefs. And as a corollary, to protect
the religious institutions that provide the essential framework for the promulgation of
faith and belief. In addition, my challenge is that people of faith work together to
improve the moral fabric of our respective nations and protect religious freedom.
Let me start with our common legal heritage.
First Magna Carta and Religious Freedom
In less than a month we will celebrate the 800th anniversary of the completion of Magna
Carta, the actual events concluded on June 19, 1215. The Magna Carta has a rather
insignificant genesis, but is very profound in terms of its influence on the laws of
historical British Commonwealth countries, including Australia, as well as the American
Constitution.
It was initially a treaty to end a civil war. In 1215 a group of barons sometimes described
as “rebels” and sometimes as being “heroic,” opposed King John’s attempt to levy taxes
to recover Normandy territory which the French had seized in 1204.
The crucial meetings were held at Runnymede, a meadow along the river Thames
outside London, which has been described as an “ancient assembly site.” I first visited
the commemoration site in June 1962, while I was a young missionary for The Church
of Jesus Christ of Latter-day Saints, and the beauty of the location and the significance
of the Magna Carta itself made a strong impression on me. It was one of the reasons I
decided to pursue law as a profession.
The Magna Carta contained clauses limiting the King’s right to exact revenues that
impacted the Barons, but the clauses relating to religious liberty and how justice was
dispensed have given the Magna Carta its enduring fame.
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Clause 1 is remarkable for our purposes here today. It declares: “First, We have
granted to God, and confirmed by this, our present Charter, for us and our heirs in
perpetuity, that the English Church shall be free, and shall have its rights in full and its
liberties intact.”
With that beginning, the Magna Carta served as an important precursor to the broad
protections of religious freedom that came to fruition centuries later in liberal
democracies descending from the British Empire. It helped establish as early as 1215
that deference should be afforded to churches in the governance of their internal
religious affairs. Today, the spirit of the Magna Carta lives on in the religious freedoms
Australia and the United States secure to churches, religious organizations, and
individual believers.
Clauses 39 and 40 are also significant. Clause 39 reads, “No free man is to be
arrested, or imprisoned, or disseized, or outlawed, or exiled or in any other way ruined,
nor will we go or send against him, except by the legal judgment of his peers or by the
law of the land.”
Clause 40 proclaims, “To no one will we sell, to no one will we deny or delay, right or
justice.”
But it was Clause 12 which has echoed through the centuries in a dramatic fashion. It
provides that no tax (termed aid then) was to be levied without common consent.
The Barons were wise enough to know that King John was unlikely to abide by the
provisions set forth in the charter. Thus they included in Clause 61 a provision which
established “THE COMMITTEE OF TWENTY-FIVE” to help ensure that the King would
honor the charter.
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This evolved to the point where by the year 1230 whenever a representative assembly
convened, it was called a “Parliament.” The significance of parliaments as a means of
increasing individual rights is clear.
Philip Buckler, dean of Lincoln Cathedral located in North England and home to one of
the four original copies of the Magna Carta, noting its importance said, “Magna Carta
speaks to what lies at the heart of our values.”
President Franklin Delano Roosevelt in his inaugural speech of 1941 declared, “The
democratic aspiration is no mere recent phase in human history. It is human history. It
permeated the ancient life of early peoples. It blazed anew in the Middle Ages. It was
written in Magna Carta.”
In addition to the Magna Carta both Australia and the United States are the
beneficiaries of the concepts and principles established by English Common Law. In
approximately 1600 Sir Edward Coke, usually pronounced “Cook,” produced the
consolidation of the English law in written form. His work was to law what
Shakespeare’s was to literature.
Coke seized upon the Magna Carta “…as the embodiment of good laws.” In his famous
words Coke said, the Magna Carta was, “such a fellow that he will have no sovereign.”
In the American colonies the Magna Carta was drawn on heavily in both the Declaration
of Independence and the First Amendment to the American Constitution.
That Declaration contains the seminal words “…all men are created equal,…they are
endowed by their Creator with certain inalienable Rights...” The acknowledgement of
God, the Creator of the Universe, as the ultimate giver of essential rights is proclaimed
in a magnificent fashion and clearly reflects the cherished beliefs of most people.
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Natural law or even a belief that we are accountable to God is not in fashion in much of
the legal world today. But the recognition that individual rights are part of the design of
a loving Creator is part of both Catholic and Latter-day Saint theology. It is not
government which has the disposition and power to grant these protections and
rights─they are derived from our Creator. The preamble to the Magna Carta
acknowledges the grace of God and the document places the king not only below God,
but also below the law.
People of faith must be at the forefront in protecting religious freedom─a freedom from
which many other essential freedoms emanate. Freedom of religion and freedom of
speech are both the heart and the foundation of representative democracy. Freedom to
believe in private and to exercise belief and speech in the public square are essential to
protecting inalienable rights.
In the American colonies the practice of religious beliefs was a principal reason for the
original settlements in New England, Pennsylvania, and Maryland (a Catholic
settlement). As one scholar has noted, “More material was printed in mid-18th century
America about religion than about political science, history, and law combined…”
Interestingly, the term “free exercise of religion” first appeared in a 1648 legal document
in America when a new Protestant governor and counselors in Maryland promised not
to disturb other Christians, with particular emphasis on Roman Catholics, in the free
exercise of their religion. This represented the first attempt in the Colonies to ensure
that Protestants and Catholics could live together under circumstances of equality.
Both Catholics and members of The Church of Jesus Christ of Latter-day Saints were
persecuted in early American history even after the founding of the new nation. In an
International Church-State Symposium in 1998, then United States Senator Gordon
Smith gave two examples. He pointed out that nativist groups were organized to
supposedly (quote) “resist the insidious policy of the Church of Rome and other foreign
influence against the institution of [the United States] by placing in all offices…nothing
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but native born Protestant citizens.” Laws were passed that clearly discriminated
against Catholics. Senator Smith notes that the same things happened in respect to my
faith, (quote) “The Mormons were anti-slavery in Missouri; …[they were] forced to leave
Missouri under attack from serious mob violence and an ‘extermination order’ from the
governor of the state.” (end of quote) Joseph Smith, the founding prophet of The
Church of Jesus Christ of Latter-day Saints, was subsequently murdered by a mob in
1844, and Church members fled westward across the Great Plains. Both Catholics and
Latter-day Saints thrive in the United States today. The Catholic Church is the largest
denomination in the United States with over 74 million members. The Latter-day Saint
Church is the fourth largest with somewhat less than 7 million members.
Notwithstanding these early aberrations that resulted in persecution, many of the
founding fathers in the United States were committed to religious freedom. James
Madison clearly favored religious pluralism. He stated, “In a free government the
security for religious rights consist in a multiplicity of sects.”
My plea today is that all religions join together to defend faith and religious freedom in a
manner that protects people of diverse faith as well as those of no faith. We must not
only protect our ability to profess our own religion, but also protect the right of each
religion to administer its own doctrines and laws. Lord John Acton in 1862 said it this
way, “…where ecclesiastical authority is restricted, religious liberty is virtually denied.
For religious liberty is not the negative right of being without any particular religion, just
as self-government is not anarchy. It is the right of religious communities to the practice
of their own duties, the enjoyment of their own constitution, and the protection of the
law, which equally secures to all the possession of their own independence.”
To demonstrate this principle I will now show a brief video featuring Clayton M.
Christensen, a prominent Harvard University Business Professor and a member of The
Church of Jesus Christ of Latter-day Saints.
VIDEO
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Accordingly, the two most important religious priorities in today’s world and in Australia
are:
First, protect each church and its right to teach and function according to its doctrine
and beliefs. This includes the freedom of a church to form a legal entity, to own
property including schools and hospitals, etc., establish its doctrine, govern its
ecclesiastical affairs, set requirements for church membership, conduct worship, and
administer its sacraments and ordinances according to its doctrine.
Second, is the ‘freedom to believe’ according to the dictates of one’s own conscience
without fear of governmental or private retaliation. This includes the basic premise of
democracy that no one should be punished based on the religious beliefs that he or she
holds. Each family must have the right to worship and conduct religious activities within
the home. In addition, each church member must be protected in employment, public
office, and the public square. No person should be disqualified from participation in
national life because of their religious beliefs.
One of my colleagues in the Twelve, Elder D. Todd Christofferson, has pointed out that
“…virtually everyone in the Western democracies claims to believe in the principle of
religious freedom. It is the application of the principle that creates controversy. Threats
to religious freedom typically arise when religious people and institutions seek to say or
do something – or refuse to say or do something – that runs counter to the philosophy
or goals of those in power…” “…religious freedom, while generally supported in
principle, is often vigorously opposed in practice.”
The leading edge of a major current dispute in the United States over religious freedom
involves owners or business employees being forced to engage in conduct contrary to
their religious beliefs. Efforts to pass laws to give more religious freedom protections to
them have been bitterly attacked. The New York Times has editorially asserted that
religion is being used as a cover for bigotry. The Wall Street Journal proclaimed on the
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same day that activists are targeting religion and that the opposition represents a new
intolerance. Examples that demonstrate the disputed issue include a doctor or nurse
forced to participate in an abortion, or a college accreditation board calling into question
a Christian university’s code of conduct for students and faculty prohibiting sexual
relations outside of marriage between a man and a woman.
Protecting those who feel accountable to God for their conduct is the “fighting in the
trenches” that is going on in the United States today. Not all examples of incursions into
religious freedom are clear cut. Refusing to terminate innocent life should be relatively
easy to defend, as should protecting religious related institutions, some others are
harder.
It should be noted that the customarily proposed legislation merely allows an individual
to prove that their religious liberty has been “substantially burdened” and requires the
government to demonstrate that its activity represents the least restrictive means to
achieve a “compelling” state interest. Both the Catholic Church and The Church of
Jesus Christ of Latter-day Saints have supported this kind of legislation where there is
no specific intention to discriminate against anyone.
However, The Church asserts that those who want their rights protected must be willing
to protect the rights of everyone else. We see no justification in not giving to those who
have same-gender attraction, and the L.G.B.T. community, protection in housing and
employment and some other basic public accommodation protections. Our doctrinal
commitment to be compassionate requires us to support these basic rights and to treat
everyone with civility and respect.
We must also support the religious freedom of all faiths as well as those with no faith.
Two basic statements which demonstrate the Church’s commitment to freedom of
religion for all are: First, our Eleventh Article of Faith which declares “We claim the
privilege of worshiping Almighty God according to the dictates of our own conscience,
and allow all men the same privilege, let them worship how, where, or what they may.”
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The second is a wonderful statement by the Prophet Joseph Smith who passionately
asserted his commitment to civil and religious liberty when he said, “…I am bold to
declare before Heaven that I am just as ready to die in defending the rights of a
Presbyterian, a Baptist, or a good man of any other denomination; for the same
principle which would trample upon the rights of the Latter-day Saints would trample on
the rights of the Roman Catholics, or of any other denomination who may be unpopular
and too weak to defend themselves. It is love of liberty which inspires my soul−civil and
religious liberty to the whole of the human race.”
Australian and United States citizens, Catholics and Latter-day Saints, must be part of a
coalition of countries and faiths that succor, act as a sanctuary, and promulgate
religious freedom across the world.
After World War II the Universal Declaration of Human Rights and other international
agreements established the legal framework for the protection of religious freedom. It
was over 65 years ago, on December 10, 1948, that the Universal Declaration was
adopted. That document declares that, “Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to manifest
his religion or belief in teaching, practice, worship and observance.”
There is a chorus of those who do not respect accountability to God and feel perfectly
comfortable in demanding that religions eliminate any doctrines that do not support their
views. One professor has written a book titled “Why Tolerate Religion?” A prominent
New York Times opinion writer, in recent weeks, said, “Religion is going to be the final
holdout and most stubborn refuge for homophobia.” He then affirms the position of a
gay advocacy leader, “…that church leaders must be made to take homosexuality off
the sin list.” He conveniently equates conduct with same-gender attraction, refusing to
recognize that one can respect and support people with same-gender attraction without
embracing homosexual conduct. That is the issue.
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This chorus of voices was lamented by an LDS apostle, Elder Neal A. Maxwell, many
years ago. He said, “How can a society set priorities if there are no basic standards?
Are we to make our calculations using only the arithmetic of appetite? Decrease the
belief in God, and you increase the numbers of those who wish to play at being God by
being ‘society’s supervisors.’ Such ‘supervisors’ deny the existence of divine standards,
but are very serious about imposing their own standards on society.”
My fellow apostle, Elder Dallin H. Oaks, is a champion of religious liberty. He recently
pointed out, “…that the weakening guarantees of the free exercise of religion are not
attributable to causes that are legal, but to changes in culture. The diminished value
being ascribed to religious freedom stems from the ascendency of moral
relativism…Today an increasing and influential group deny or doubt the existence of a
God and insist that all rules of behavior are man-made, to be accepted or rejected as
one chooses because there is no such thing as right and wrong. We live in an
increasingly godless and amoral society.”
Up to this point I have emphasized issues primarily relating to the United States. So
how does Australia measure up with respect to religious freedom? I do not pretend to
be an expert on Australian law and express appreciation for lawyers in both the United
States and here in Australia who have assisted me in this area. While no country is
perfect and every country faces challenges, I’m pleased to say that to a very significant
degree all these vital safeguards for religion are woven into the fabric of Australian law
and society.
Though Australia has been the subject of domestic and international criticism where
human rights are concerned, I note that Australia was one of the eight nations originally
involved in the drafting of the Universal Declaration of Human Rights and that ‘Doc
Evatt’, a former Australian Cabinet Minister, Attorney-General and High Court Judge,
was the very first President of the UN’s General Assembly. In keeping with that tradition
of support for international human rights, “Australia has [also] ratified almost all of the
major international human rights instruments.” Those instruments of course include the
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Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights, which further affirms that “[n]o one shall be subject to coercion which
would impair his freedom to have or to adopt a religion or belief of his choice” and that
“[f]reedom to manifest one’s religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others.” Australian judges have
interpreted these provisions, among others, as protecting the manifestation of belief
through worship, wearing religious clothing, displaying religious symbols, conducting
public worship and observances, and selecting religious leaders.
While international treaties do not create binding domestic obligations unless follow on
domestic legislation is also passed, to date Australia’s common law commitment to
religious freedom, has generally seen Australian courts construe law so as not to
conflict with international religious freedom norms.
None of which is to say that Australia secures religious freedoms solely because it is
bound by international obligations. Australia’s own Constitution safeguards free
exercise of religion against abridgment by the federal government. Section 116 states
that “[t]he Commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any religion.”
The High Court of Australia has confirmed that Section 116 prevents federal intrusion
into the vital protection of freedom of belief and freedom to live one’s faith. The Court
has declared that “[f]reedom of religion, the paradigm freedom of conscience, is of the
essence of a free society” and includes an area within which an individual is free “to
believe and to act in accordance with his belief without legal restraint.” The principle of
religious autonomy established as long ago as Magna Carta is also respected since
churches are protected from governmental interference with the selection of priests and
ministers and religious educational institutions are accommodated in their selection of
religiously important staff.
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But I understand that you are also experiencing some cracks in the respect that is paid
to freedom of religion, conscience and belief in practice when this foundational norm
has to be weighed against some of the other values that are now protected in state and
federal anti-discrimination legislation. For while discrimination based on religious belief
is unlawful in commercial and educational settings, some recent decisions by state
tribunals administering anti-discrimination legislation, suggests that religious bodies
conducting commercial activities are not entitled to religious liberty in the same way as
human individuals, and that religious expression that would offend minority groups,
even at election time, is not protected by your implied freedom of political
communication.
However, the common law, as set forth by Australia’s High Court thus far supports
religious freedom. It has recognized for purposes of the common law that “freedom of
religious belief and expression” is an “important freedom generally accepted in
Australian society” and thus “a powerful consideration favouring restraint in the
construction of broad statutory power.” As a consequence, Australians have the right to
share their faith and beliefs with others. Our own vibrant missionary program here in
Australia is a testament to that freedom.
The Church of Jesus Christ of Latter-day Saints and its members have directly
benefited from the protections Australia affords to the free exercise of religion. Church
members freely hold and express their beliefs, not only privately but publicly among
their friends, neighbors, and colleagues. They do so without fear of reprisal or
discrimination in important areas of life like employment, housing, and public services.
The Church itself is free to establish and preach its doctrine, own property, establish
local wards and stakes, call and release priesthood leaders, and otherwise govern its
ecclesiastical affairs—all with little or no interference from government.
A recent case involving the Church illustrates the point. It involved a group of members
who disagreed with a decision by Church leadership on how best to organize the
Church and conduct its meetings. Opinions were strong and feelings were sensitive.
Unfortunately, some sought to use the power of the courts to resolve the issue—to
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essentially dictate to the Church how it should be organized and how it should operate.
But Australia’s judiciary upheld the Church’s freedom to govern its sacred ecclesiastical
affairs. Invoking international treaties and quoting the European Court of Human
Rights, the Federal Court of Australia explained that religious liberty includes not only
the right of individual conscience but also the right of the Church to govern itself and its
religious affairs according to its doctrines as administered by inspired ecclesiastical
leaders.
Note that these powerful affirmations of the right of churches to govern
themselves trace their origins directly to the Magna Carta. And those origins
have been guarded over the centuries by Australia’s courts and legislative
bodies, and by the people themselves. As a Church, we are grateful for
Australia’s great heritage of protecting religious freedom. Without that freedom,
God’s great Plan of Happiness is frustrated, because God’s children are not fully
able to exercise their agency and choose for themselves what they will believe,
how they will act, and what they will ultimately become.
But as with all societies that value religious freedom, the protections Australia affords to
religious exercise are not perfect or immune from attack. Safeguarding religious liberty
requires constant vigilance. Difficult social and legal issues that directly affect religious
freedom are looming on the horizon. Here are just a few questions that Australia is
facing or will likely soon face:

If Australia follows the trend of many western nations and defines
marriage to include same-sex couples, will religious organizations
continue to have the freedom to define marriage as solely between a man
and a woman for all religious purposes?

Will laws barring discrimination against LGBT persons have appropriate
religious exemptions and protections so that religious organizations and
people of faith can affirm their deeply held beliefs regarding marriage,
family, and sexuality without retaliation?
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
Will religious schools be permitted to have religious requirements for
faculty, staff, and students?

Will religious believers be excluded from certain professions because of
their beliefs or expressions regarding sensitive social issues?

With the decline in religiosity generally, will religious exercise increasingly
be limited to the home and places of worship, or will it continue to have a
positive role to play in the public life of this great nation?

Will religion come to be seen as dangerous—as something the law must
protect people from rather than as a great good for individuals, society,
and the state?
These and related questions highlight some of the challenges that religious
organizations and individual believers will likely confront in the years to come. Constant
vigilance will be necessary to preserve the great treasure of religious liberty.
Before concluding I wish to express my appreciation for my personal relationship with
Catholic leaders in the United States and in other parts of the world. We have
recognized that neither of our religions can compromise the essentials of our faith. We
each strongly maintain adherence to our respective Christian doctrine, but have worked
together on faith, family, and religious freedom.
For several years I have deeply admired Cardinal Francis E. George, the former
archbishop of Chicago, who passed away last month. I mourn his passing. In April
2008 when he was serving as the president of the US Conference of Catholic Bishops,
he invited Elder M. Russell Ballard and me to join with religious leaders from other U.S.
faiths to meet with Pope Benedict XVI in New York.
In February 2010 Elder Ballard and I accompanied Cardinal George when he spoke to
over 14,000 students at Brigham Young University. He explained how Catholics and
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Latter-day Saints must be partners in the defense of religious freedom. He referred to
“threats to religious freedom in America that are new to our history and to our tradition.”
Two of the examples he mentioned were threats to religious based institutions from
participating in abortions and “the development of gay rights and the call for same-sex
marriage.”
I have participated in wonderful meetings with his successor presidents of the United
States Conference of Catholic Bishops, Cardinal Timothy Dolan and Archbishop Joseph
Kurtz. We are closely associated with them in working together to improve the moral
fabric in the United States and protect religious freedom.
A few weeks ago, Archbishop Bernardito Auza visited Utah and spoke at a religious
liberties symposium held at Utah Valley University. He is the Vatican’s Permanent
Observer of the Holy See to the United Nations. In his public remarks he noted four
areas where Catholics and The Church of Jesus Christ of Latter-day Saints share
common beliefs: “the family, education, charity, and being able to live and share ones
faith.” But he warned that, “aggressive secularism,” is placing these institutions and
practices under threat.
We were pleased that Pope Francis called a Vatican Summit on issues relating
to the family. Two senior leaders from our Church were invited to attend, President
Henry B. Eyring, of The First Presidency of The Church of Jesus Christ of Latter-day
Saints an Apostle L. Tom Perry. We were particularly pleased, that along with many
other faith leaders, President Eyring provided a significant address at that event.
How Can People of Faith Work Together To Protect Religious Freedom?
The Church of Jesus Christ of Latter-day Saints is trying to do its part to help ensure
that freedom of religion remains a vibrant part of Australia’s great heritage. The Church
and its members have been active in organizing and supporting events that promote
better understanding of religion and religious liberty. For example, in 2014, Church
members partnered with Griffith University to hold the G20 Interfaith Summit on
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Economic Development and Religious Freedom, which brought together scholars,
leaders, and government officials from across the globe. This summit highlighted the
importance of religious freedom as a fundamental human right and a basis of a just,
free, and prosperous society.
An extremely important area where all faiths could have an impact is to sponsor
credible research that will demonstrate the social and fiscal benefits of religious
organisations to government budgets and address directly the secular view that
religious tax concessions are a drain on government income.
There are numerous other endeavours, both internationally and here in Australia, where
people of faith working cooperatively with each other can strengthen religious liberty.
But most importantly, people of faith must demonstrate each day by their good works
that religious freedom benefits everyone, both believer and non-believer.
Those who feel accountable to God have a responsibility to live upright lives of service
to God and our fellowman, to obey the law, and to be good citizens, neighbors, and
friends in all we do. As we do so, ordinary citizens and government officials alike will be
more inclined to see the value of religion and to respect the basic principles that allow
us to freely live it. There is no better demonstration of the great benefits associated with
religious liberty than for devoted members of various faiths who feel accountable to God
to model principles of integrity, morality, service, and love. As others see the goodness
of individuals and families—goodness that is founded in strong faith and character—
they will be much more likely to speak up in defense of the religious freedoms that allow
us to be who we are.
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