I really like and agree with elements of Oaks' analysis given here at a symposium on Religion and Law at Chapman University while also strongly disagreeing with other elements.
Now, I'd like to preface my statements with a caveat: In case you're a fellow mormon and you want to say, he's a prophet, you can't disagree with anything he says, I'd like to point out that Oaks was not speaking prophetically. He was not preaching from the pulpit to the general assembly of the church. He was instead speaking in an academic setting on a panel about law and religious freedom - in which he has academic training. Therefore his analysis should be treated academically, and although Oaks does have good academic credentials, his analysis is still subject to academic criticism, and need not be accepted dogmatically.
Furthermore, Oaks himself says that there is "no unique mormon doctrine" in what he expounds, and that "his sources are law and secular history". Which unlike revelatory sources are subject to high levels disagreement and dissent.
Finally, when Oaks does take a moment at the end of the speech to offer a few words as an official representative of the church he clearly states that he is shifting into this role by saying: "as an Apostle of the Lord Jesus Christ..."
Now, for my response to his statements. I'll start with what I agree with in his statements:
I agree that Oregon v. Smith was a bad court decision and bad case law. I further agree that not only religious speech, but also religious practice should be protected by our interpretation of the constitution. I further agree that several of his examples offer strong evidence that personal religious practice is being punished by the state in violation of the constitution freedom of religion clause and this should be corrected.
I further agree that people of all beliefs should be united in our resolve to protect religious practice even against popular majority opinion.
However, I disagree with Oaks that moral relativism is necessarily in opposition to constitutional values or even religious values for that matter. In fact, moral relativism is an underlying assumption to the republican form of government and the constitutional structure.
Likewise, even if you believe there is a divine law, that doesn't necessarily assume that we humans have direct access to said law. Ultimately, the human condition requires the acknowledgment that morality is relative to time, place, situation, belief, tradition, age, sex, station, etc. It's silly to state otherwise.
Just as we mormons seek respect in the public forumn, we must reciprocally cede respect in the public forumn to those with other beliefs. I believe this respect for others beliefs should go so far as to advocating the provision of the same protections and rights to same-sex couples as are currently enjoyed by hetero couples.
Personally I like the libertarian option: Civil Unions for everyone! This is to me the ideal compromise between religious people who want a special definition for the word "marriage" and same-sex, and alternate lifestyle individuals who want to be treated equally under the law.
1. It provides equal recognition of the law of all moral and sexual preferences. (I also think the moral/sexual preference of polygamist marriages should also be recognized by the state in this fashion.)
2. It removes from the state the whole debate over the word marriage. Mormons (and like minded religionists) have a special fetishized conception of 'marriage' that we hold very dear - i.e. an eternal bond between man and woman. Many of us (not so much me admittedly) seek to have our understanding of marriage codified into law. (Personally, I think this demand reveals a weak and impotent belief in that it feels the need for state sponsorship in order to be able to live it out. Pathetic.) However, if everyone was uniformly granted civil unions the debate over the word marriage would be moot at the governmental level and would be apply to play out at the proper level of individual decision-making.
Finally, I also take issue with Oaks statements to the effect that general morality is impossible without religiosity. I know many people whose beliefs can be described as agnostic/atheist who are deeply moral. Furthermore, there is an enthusiastic academic and social tradition that demonstrates this point. Oaks wants to make the point that there is a lively tradition of religious voices that have significantly contributed to political and social advances, but fails to recognize that is an equally important tradition of non-religious activism and philosophizing, which have contributed to the advancement of society. Furthermore, without the voices of opposition and dissent, religion becomes stale, dogmatic, rigid and generally inhospitable. We need to be challenged in order to ascend to higher levels of understanding as religious individuals. For these reasons moral relativity is an essential component of our democracy.