SALT LAKE CITY – U.S. Sen. Orrin Hatch, a current member and former Chairman of the Senate Judiciary Committee and a lead author of the Religious Freedom Restoration Act, gave the keynote address at the 21st annual International Law and Religion Symposium at Brigham Young University law school Sunday night.
Hatch’s speech focused on the importance of the first freedom in our nation’s history, attacks on religious liberty, and how to return our nation to one that holds sacred the freedom of religion. Hatch also received a distinguished service award for his dedication to defending religious freedom throughout his 38 years of Senate service.
“This is an unsettled and unsettling time for religious liberty. Both at home and abroad, religious liberty is under attack. What was once a broad consensus here in the United States that religious freedom deserves special protection has recently crumbled,” Hatch said. “By working to make government and religion partners once more rather than antagonists, we can revive the view that religion is a force for good rather than something to be swept under the rug. And by ensuring that our religious heritage maintains a robust role in our educational curricula, we can ensure that our children understand that religion helped our heroes accomplish great things and made our nation what it is today.”
More information about the symposium can be found here.
Hatch’s full remarks, as prepared for delivery, are below:
It is my privilege to be with you for the 21st annual International Law and Religion Symposium. I am humbled to be added to the list of distinguished scholars and jurists from around the world who have given this address in the past.
This is an unsettled and unsettling time for religious liberty. Both at home and abroad, religious liberty is under attack. What was once a broad consensus here in the United States that religious freedom deserves special protection has recently crumbled. Indeed, President Obama and his administration have taken positions openly hostile to religious liberty. To cite just two examples, the administration argued in the Supreme Court that the federal government may control a church’s decisions to hire or fire its own ministers. The administration also claimed authority to force employers to violate deeply held religious beliefs in providing health benefits to employees. At the state level, hundreds of small business owners across the country have faced fines, bankruptcy, and other sanctions under public accommodations laws for following their religious convictions.
Internationally we see many troubling attacks on religious liberty. In Nigeria, Boko Haram continues to attack, maim, and kill Christians in its campaign of terror. In Iran, a man was recently executed for “heresy” after he questioned the accuracy of certain religious texts. Pakistan continues to imprison religious dissenters for blasphemy. One such dissenter was recently killed by his jailer while awaiting trial. The rise of ISIS and other Islamist groups in the Middle East poses a significant threat to the fragile religious freedoms in that region. And nations from Europe to Australia are considering bans on various types of religious clothing.
I would like to take my short time with you this evening to explain why religious freedom matters, how it is under attack, and what each of us as global citizens and thought leaders can do to protect this most precious and fundamental freedom.
Why Religious Freedom Matters
First, why religious freedom matters. Professor Thomas Berg of the University of St. Thomas writes that one of America’s greatest contributions to the world has been establishing religious freedom as both social reality and constitutional principle. I believe this formulation is not only descriptive, but can also be prescriptive, and it will form the basis of my remarks this evening.
Religious freedom in America was social reality before it became constitutional principle. For nearly two centuries before the founding of this Republic, one religious community after another came here to live their faith. Puritans, Congregationalists, Roman Catholics, Jews, Quakers, Baptists, Presbyterians, and Methodists all found refuge on these shores. Professor Michael McConnell of Stanford has noted that in the years before the Revolution, America experienced a higher degree of religious diversity than existed anywhere else in the world.
Religious freedom as social reality in America has traditionally had three dimensions. First, it has been freedom not only of belief, but also of behavior. Second, it has been freedom that may be exercised publicly as well as privately. And third, it has been freedom to act both individually and collectively.
This robust social reality was the backdrop for our Constitution. America’s Founders knew that liberty necessitates limits on government, but they were divided as to what those limits should be. Some thought that simply listing the powers of Congress in the body of the Constitution was enough, that enumeration was effectively self-limiting. Others were more skeptical about government power and demanded affirmative protection for particular rights.
The skeptics won the day, and the first right named in the Bill of Rights is the freedom of religion. Note that the First Amendment protects the free exercise of religion, a phrase that had been in use for more than a century before James Madison incorporated it in the First Amendment. Not a particular exercise of religion, or the exercise of religion by a particular person, or the exercise of religion for a particular purpose. The Constitution protects the free exercise of religion itself.
Religious freedom, then, is not simply one of many competing values, but a special and preferred value. It is a central reason that America exists at all. Ninety-five percent of Americans, in fact, believe that one of the principal reasons America was founded was to enable people of all faiths to believe and practice their religion.
The U.S. Supreme Court attaches the label fundamental to the most important rights. Fundamental rights are rights that are protected from virtually any encroachment and that take precedence over other interests or values. These rights, the Court has said, are deeply rooted in this nation’s history and tradition and are implicit in the concept of ordered liberty itself. Religious freedom is one of these fundamental rights.
Religious freedom, however, is not an American invention. It is in fact the oldest internationally recognized human right, with a heritage going back at least to the Reformation.
Nor is religious freedom a uniquely American ideal. In 1948, after the horror of World War II, numerous nations, including the United States, signed the Universal Declaration of Human Rights. Article 18 of that Declaration states that every person has a fundamental right to freedom of religion, including “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.”
Here again we see the three dimensions of truly robust religious freedom: belief and behavior, private and public, individual and collective. Genuine religious freedom exists when these three dimensions are both social reality and constitutional principle, and are understood as fundamental.
In 1998, Congress unanimously passed the International Religious Freedom Act. I was proud to support the Act, which created an Ambassador-at-Large for International Religious Freedom within the Department of State and established the U.S. Commission on International Religious Freedom. The Ambassador submits reports to Congress each year addressing religious freedom in other countries. Based on these reports, the Secretary of State may designate countries that engage in systematic, ongoing, and egregious violations of religious liberty as countries of particular concern. The U.S. Commission on International Religious Freedom also submits independent annual reports that go into greater depth on selected countries that in the Commission’s independent judgment deserve greater scrutiny.
The Commission is a bipartisan, nine-member body that investigates religious freedom around the world and holds hearings to educate Congress and the public about instances of religious persecution. The Commission’s immediate past chairman, Professor Robert George of Princeton, last year wrote about what he called religious freedom in its most robust sense.
Religious freedom is far more than a mere right to worship or to believe in private, he said, but the right to express one’s faith in public. According to Professor George, to overcome the powerful and broad presumption in favor of religious liberty, political authority must meet a heavy burden.
The Commission’s current Chair, Katrina Lantos Swett, is equally vigorous in affirming religious freedom, and has special links to Brigham Young University because of her membership in The Church of Jesus Christ of Latter-day Saints.
The social reality of religious freedom has an additional, more practical dimension. America’s Founders, including George Washington, spoke about religion’s role in helping to create good citizens. The Massachusetts Constitution of 1780 similarly declared that general happiness, good order, and civil government all depend on piety, religion, and morality. And the eminent Alexis de Tocqueville, writing in the nineteenth century, observed that Americans across all classes and parties believed that religion is indispensable to the maintenance of well-functioning political institutions.
This topic has more recently been the subject of conferences and a growing body of scholarship. Professor Mary Ann Glendon of Harvard, for example, has argued persuasively about how violence tends to be greater in societies that suppress religious liberty and that religious freedom correlates with democratic longevity.
The last several American presidents have issued proclamations each year naming a day in January as Religious Freedom Day. These proclamations, by presidents of both parties, have made some of the same points I have discussed tonight. President Bill Clinton reminded us that religious freedom is a natural right and is essential to our well-being and dignity as human beings. President George W. Bush said that religious freedom is a cornerstone of the American republic and a fundamental human right that contributes to stable democracy.
I have described the history of religious freedom in America to place in stark relief the consequences of weakening and constricting this freedom. A few blocks from the U.S. Capitol in Washington, D.C. is the National Archives, which houses the most important documents from America’s Founding. Reaching the main entrance requires walking past a statute on which is inscribed the axiom “eternal vigilance is the price of liberty.” That vigilance is necessary to ensure that religious liberty remains both social reality and meaningful constitutional principle.
How Religious Freedom Is Under Attack
Unfortunately, both dimensions of religious freedom in America are eroding. In terms of social reality, while nearly 90 percent of Americans say that religion is important in their personal lives, three-quarters believe religion is losing its influence in our society, the highest level in nearly 60 years.
In several ways, pressure is mounting to deprive religious freedom of its foundational status in the cultural and political life of our nation. For example, arguments have been made in both the political arena and in America’s courts that laws should not — and even may not — be based on religious considerations.
Elder Dallin H. Oaks of the LDS Church addressed this notion several months ago at Utah Valley University’s Constitutional Symposium on Religious Freedom. The argument against basing laws on religious considerations goes like this: because religion is a private rather than a public matter — or so the argument claims — the only legitimate basis for public debate and political decision-making is so-called public reasons, which are defined to exclude religious values and expression.
This view attacks all three of the dimensions of religious freedom that I described earlier. It insists that religion is limited to belief, not behavior; that religious exercise is individual, not collective; and, especially, that religion is something that should be conducted in private, not in public.
Religious freedom as constitutional principle is also under attack, in at least two ways. The first is through a general decline in American citizens’ knowledge about our Constitution, our history and heritage, and our form of government. James Madison, a principal author of the Constitution, wrote that only a well-instructed people can permanently remain a free people.
Citizens cannot understand, let alone defend, what they do not know. Yet today, poll after poll shows that Americans are shockingly ignorant of even the most basic matters relating to their nation and their liberty. Author James Bovard aptly calls this attention deficit democracy.
This general decline in Americans’ knowledge about government sets the stage for the second way in which religious freedom as a constitutional principle is threatened. For 150 years after America’s Founding, a consensus existed that judges have only a modest role in interpreting our written Constitution. Because the Constitution expresses the people’s will about government power and individual rights, that consensus maintained, only the people have authority to change the Constitution.
But ignorance about American history, our political system, and the requirements of liberty has allowed a radical transformation in the courts. Since the 1930s, presidents have increasingly appointed judges willing to impose their own meaning on the Constitution rather than draw the people’s meaning from it. I mention this because the personal values and preferences these activist judges have imposed have been uniformly hostile to religion and religious freedom.
The First Amendment prohibits federal establishment of religion and protects the free exercise of religion. America’s Founders viewed the Establishment Clause narrowly and the Free Exercise Clause broadly, a combination that allowed for robust religious freedom and an active role for religion in public life. Judges who have felt free to impose their own values, however, have consistently reversed that order, interpreting the Establishment Clause broadly and the Free Exercise Clause narrowly. The result has been a continued diminishing of religious freedom and an increasingly muted role for religion in public life.
In a case titled Lee v. Weisman, the Supreme Court in 1992 held that an invocation before a public school graduation ceremony was an establishment of religion prohibited by the First Amendment. Such invocations had been common throughout our history and are still practiced in legislatures across America, including in the U.S. Senate, where I serve. The argument seemed to be, at least in the public school context, that the mere uttering of religious words in the form of a prayer was an unconstitutional establishment of religion.
While the Weisman decision broadened the meaning of the Establishment Clause, a decision two years earlier narrowed the Free Exercise Clause. The Supreme Court had for decades held that government action burdening religious exercise must meet a legal standard called strict scrutiny that requires a compelling justification for the government’s action. Applying this standard identifies the free exercise of religion as a fundamental value while also allowing for some restrictions under narrow circumstances.
An Oregon state law prohibited the use of controlled substances, including the drug peyote. Two Native American state employees were fired for using peyote in their religious ceremonies and argued that this violated their First Amendment right to the free exercise of their religion. The U.S. Supreme Court disagreed, rejecting the view that there must be religious exemptions for laws such as Oregon’s controlled substance ban. Instead, it held that any neutral law of general applicability could override religious freedom claims, and that the strict scrutiny standard would apply only when government explicitly targets religion, and in certain other narrowly defined contexts.
This decision, titled Employment Division v. Smith, was deeply troubling. By significantly narrowing the circumstances in which religious exercise would be protected as a fundamental value subject to strict scrutiny, the Court significantly broadened the circumstances in which it would be subject to all sorts of government controls. In one fell swoop, the Court reversed decades of precedent, disregarded centuries of practice, and threatened to upend religious liberty’s status as a preferred value in American society.
I knew that I had to do everything in my power as a United States Senator to limit Smith’s effect. And so I led a campaign to reverse the Supreme Court’s decision and restore heightened protection for religious liberty. The culmination of these efforts was the Religious Freedom Restoration Act, or RFRA, which I sponsored in the United States Senate. RFRA was the rare bill that attracted broad, indeed nearly unanimous, bipartisan support.
RFRA’s purpose was to reinstate the broad protection religious liberty enjoyed prior to Smith. It said, simply and plainly, that “(g)overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” This means government cannot pass laws or take action that substantially impedes a person’s practice of religion, even when the law is targeted to some other, nonreligious purpose and affects everyone — religious and nonreligious — equally. Nor is there any limit on subject matter. All government action that substantially burdens religious liberty is prohibited, regardless of whether it involves the environment, education, transportation, or health care.
RFRA also contains an exception: Government can substantially burden a person’s exercise of religion, but only if two conditions are both met. First, the government measure must advance a compelling government interest. Second, it must be the least restrictive means of advancing that interest.
This is the so-called strict scrutiny test that applied before the Smith decision. In order to intrude on religious liberty, government must have a very good reason for doing so, and the intrusion must be necessary to accomplish that goal. If there is an alternative way to accomplish the same result that does not intrude on religious liberty, the government must take it. Put differently, government may intrude on religious liberty only when it has no other choice. This restores religious freedom to its proper place in the pantheon of values. Other values and interests take a back seat where religious rights are involved.
As you can see, RFRA is an incredibly expansive statute. It applies to all government action, and requires government to satisfy strict conditions before it can intrude on religious liberty.
Equally broad was the coalition that passed RFRA. The bill passed the House of Representatives unanimously. Think about that — unanimously. There was not a single dissenting vote. Even the vote to authorize the use of military force against al-Qaeda following 9/11 was not unanimous. RFRA passed the Senate 97 to 3. Nearly unanimous. The day President Clinton signed RFRA into law was one of the proudest days of my life.
RFRA has not had an uncomplicated history in the courts. In 1997, the Supreme Court held that Congress lacked constitutional authority to impose a stricter standard of religious freedom protection on the states than the Supreme Court had decreed in Smith. Intervening cases have confirmed that RFRA does restore the compelling interest test where federal legislation is involved. Significantly, nineteen states have adopted state religious freedom restoration acts, and courts in another twelve states have accomplished the same result by construing their state constitutions to require heightened scrutiny of religious freedom claims. Only four states have explicitly followed the reasoning of the Smith decision. Thus, while the Supreme Court narrowed the state protections provided by RFRA, the majority of states have followed the lead established by Congress in passing RFRA.
RFRA was a broad law supported by a broad coalition that recognized the law’s expansive scope. When President Clinton signed it into law twenty years ago, there was widespread agreement as to religious liberty’s fundamental status, and the fact that government should have to exhaust all other possible avenues before intruding on religious rights.
But unfortunately, times have changed. Where once there was broad agreement, now there is discord.
Earlier this year, in a case titled Burwell v. Hobby Lobby Stores, the Supreme Court held that Obamacare’s birth control mandate did not sufficiently accommodate the free exercise of religion. The plaintiffs in the case argued that providing certain mandated birth control products would violate their deeply held religious beliefs regarding the sanctity of life. In ruling for the plaintiffs, the Court found that there were available alternative means of accomplishing the policy objective of providing insurance coverage for birth control that would not force the plaintiffs to violate their sincere, deeply held religious beliefs.
Set against the broad backdrop of American history, of religious freedom as both social reality and constitutional principle, the Court’s decision was not remarkable at all. But throughout American society, the longstanding consensus about religious freedom has deteriorated, and the Court’s decision has proven controversial.
As with Smith, members of Congress responded to the Hobby Lobby decision with legislation to overturn it. But there was a key difference between the decisions: Smith diminished religious freedom, whereas Hobby Lobby secured it.
Think about that. In 1993, Congress responded to the Smith decision that had weakened religious freedom with legislation to protect it. In 2014, however, a mere two decades later, many members of Congress — including many who had voted for RFRA — responded to the Hobby Lobby decision that had protected religious freedom with legislation to weaken it.
Nor are these attempts to diminish religious liberty in the wake of Hobby Lobby limited to the specific facts of that case. Hobby Lobby dealt with Obamacare’s birth control mandate. The proposed legislative responses to Hobby Lobby, however, sweep much more broadly. They would exempt from RFRA’s strict scrutiny requirement not just birth control coverage, but all federal laws and regulations relating to health care. Just as Smith provoked a broad legislative response, so did Hobby Lobby. The difference is that in 1993 there was near-unanimity that religious liberty deserves the highest protection, whereas now, a significant portion of Congress believes religious liberty deserves no particular protection, at least where health care is involved.
I have served in the U.S. Senate for nearly 38 years, and have been involved in developing, negotiating, drafting, and enacting thousands of bills. Rarely have I seen a bill that was clearer or simpler than the Religious Freedom Restoration Act. In 1993, Congress was nearly unanimous that the free exercise of religion was to continue its preferred place in our hierarchy of values. Just 20 years later, many of the very Senators and Congressmen who supported RFRA are now pushing legislation that would render it impotent.
Another way in which religious freedom is being pulled down from its preferred status is by placing it in conflict with other rights, including statutory rights. This situation occurs, for example, when the constitutional right to the free exercise of one’s religion is said to conflict with a statutory right to be free from discrimination.
The U.S. Supreme Court addressed this issue in 2012 in a case called Hosanna-Tabor Evangelical Lutheran Church v. EEOC. In Hosanna-Tabor, a religious denomination argued that its First Amendment right to determine who would serve as its ministers created an exception to a federal law prohibiting employment discrimination.
Ordinarily, the proposition that statutes must conform to the Constitution is accepted as an obvious principle. A conflict between the two typically comes before the courts when a party alleges that a statute violates the Constitution. This case, however, came to the Supreme Court in the opposite posture. The plaintiff employee argued, in effect, that the Constitution violated the statute.
The Supreme Court, thankfully, rejected this twisted view, and instead vindicated the First Amendment right of churches to choose their ministers free from governmental interference. Notwithstanding this clear judicial victory, however, the case revealed something very disturbing — even offensive — about the Obama administration’s view of religious freedom.
The administration argued that there was no need for a special religious exception to federal discrimination law, because all groups— religious and secular — already enjoy some level of protection under the First Amendment freedom of association. As the Court explained in rejecting this “remarkable” proposition, the administration wrongly believed that, “the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club.”
Let that sink in for a moment. The President of the United States was arguing that a church’s right to select its leader free from governmental interference was no different from that of a scout troop, a local Kiwanis club, or an intramural sports team. The administration, in effect, was asking the Court to read the Free Exercise Clause right out of the First Amendment and hold that a church is no different from any other group in terms of its relation to government. Churches, in the administration’s view, are just another social group.
Thankfully, the Supreme Court rejected this position unanimously, noting that “the text of the First Amendment itself . . . gives special solicitude to the rights of religious organizations.” You would think this point would have been obvious to the President and his lawyers.
Do not think, however, that the Obama administration has consistently argued that statutes trump the Constitution. Just last year, for example, the Obama administration argued to the Supreme Court that the federal Defense of Marriage Act violated the Fifth Amendment’s implicit guarantee of equal protection.
Lay aside for the moment the remarkable fact that the Obama administration chose not to defend a duly enacted federal law. Focus instead on this fact: It became the official position of the United States that, on the one hand, an implicit constitutional right trumps a federal statute recognizing the millennia-old, religiously rooted, traditional definition of marriage, while on the other hand, an explicit constitutional right to religious freedom fails against a federal anti-discrimination statute. It would be difficult to imagine a more direct attack on the fundamental status of religious liberty.
The alleged conflict between religious liberty and anti-discrimination laws represents another area where the former consensus favoring religious liberty has fallen apart. Last year I was proud to support the Employment Non-Discrimination Act, or ENDA, which would prohibit discrimination in hiring and employment on the basis of sexual orientation. The bill, which contained a robust exemption for religious organizations, struck the right balance between religious liberty and a competing right. It advanced the cause of equality by prohibiting workplace discrimination against gays and lesbians, but also protected the rights of religious organizations. In this way, it maintained religious liberty as a preferred right.
Many LGBT advocacy groups, however, have since withdrawn their support for ENDA expressly because of its religious exemption. In their view, religious groups should be treated just like any other groups, and the principle of equality should trump the right to religious liberty. Far from giving religious freedom preferred status, these groups would subsume it beneath other values.
We are seeing the same dynamic play out across the country as LGBT and other advocacy groups are increasingly opposed to religious exemptions that even a few years ago would have passed without conflict. I am deeply concerned by this dynamic. From my perspective, it appears that now these groups believe they are “winning” the argument and therefore have no need for religious accommodations. Whereas in the past they were willing to respect religious freedom, now that they believe they have the upper hand they are ready to disregard religious liberty altogether.
The U.S. Supreme Court begins its new term tomorrow, the first Monday in October. On Tuesday, the Court will consider a case presenting once again the question whether religious freedom remains a preferred value in American law and culture. In 2000, I introduced — and Congress unanimously passed —the Religious Land Use and Institutionalized Persons Act. This law applies the same protective standard found in RFRA to the contexts of incarceration and local zoning practices.
In the case to be argued this week, a Muslim prisoner in Arkansas was denied permission to grow a half-inch beard that his faith requires, even though the state allows prisoners to grow beards for medical reasons. As I described earlier, neither the First Amendment nor the statute makes religious exercise an absolute value. But it is a preferred value. This case is important because it measures whether a particular policy is the least restrictive means available, or whether a particular purpose is compelling. For that reason, the Court’s decision may signal whether religious freedom remains fundamental.
Preserving and Protecting Religious Freedom
Tonight I have painted what seems like a negative picture. Religious freedom in three-fold dimension is being eroded and weakened as both social reality and constitutional principle. It is increasingly viewed not as a fundamental right, or even as a preferred value, but at best as one of many competing interests, and at worst as something that should be kept out of the public square altogether. This trend not only restricts religious liberty, but also limits the impact faith has on society.
I said at the outset that Professor Berg’s formulation of religious liberty as social reality and constitutional principle can be both descriptive and prescriptive, and I turn now to the latter as I conclude my remarks. The solution to the problems I have identified is to strengthen religious freedom as both social reality and constitutional principle. That may sound simplistic, but it is hardly simple.
As we have seen, it is taking mere years to undermine and possibly destroy what took centuries to build. I agree with Professor Glendon of Harvard, who argues that whether religious freedom in the future will be a fundamental right is primarily a cultural challenge. Professor Glendon gave the 2011 Harold J. Berman Lecture at Emory University, and I commend it for your consideration. In her lecture, Professor Glendon endorsed legal and political efforts to defend religious liberty, but also said that in the end, success “will depend even more on the attitudes and actions of religious believers and leaders themselves.”
I think Professor Glendon is exactly right, and I am deeply dismayed at the way contemporary society has come to treat religion.
Much of this can be laid at the feet of media. So much of what we see or hear in movies, on the radio, and particularly on television seems to scorn or degrade religion. Churches and charities are depicted as corrupt and self-indulgent. Late-night comics treat believers as buffoons. Reporters fawn over atheists and agnostics who purport to “speak truth to power” by belittling our religious heritage even as they enjoy more media coverage and a more lavish lifestyle than any parish priest could ever hope.
When did religion become such a negative thing? How many movies must we endure where the villain is a priest, a pastor, or a self-righteous zealot? One might be excused for thinking that, based on representations in popular media, religious organizations are forces for evil rather than the backbone of much that is good and generous in our society.
Nevertheless, we cannot lay all the blame at the feet of the media. To do so would be to pretend that we — academics, government leaders, journalists — are powerless. But we are not. Even if we cannot control what media elites disseminate, we can work within our own spheres of influence to remind our fellow citizens of our shared religious heritage and the tremendous good religion has accomplished in our society.
First, we must be resolute against efforts to remove our religious heritage from educational curricula. I do not mean here to get into the debate about whether the United States is a “Christian nation,” or similar controversies. Rather, I mean to suggest that we should be honest with our children about the profound — and profoundly positive — impact that religion had on some of our greatest leaders. It is fashionable to question the Christianity of George Washington, and volumes have been written on Thomas Jefferson’s heterodoxy, but the fact remains that nearly all of our greatest leaders, from Washington to Lincoln to Martin Luther King, were men of faith who found deep strength in their religious convictions. Our heroes were religious men. To teach this is not to “inject” religion into a place it does not belong. It is simply to state the truth.
Remember, too, that many of our greatest social movements, from abolition to the Civil Rights movement of the 1960s, were led by religious individuals motivated by religious conviction.
Second, we must reclaim the public square as a forum friendly for religion. Nearly seventy years ago the Supreme Court committed legal and historical malpractice by importing into its early Establishment Clause jurisprudence the false notion that our Founders intended to wall off religion from the public square. Myriad historians have since proved the Court’s error, but the idea it planted has flourished into the widespread belief that religion has no place in school, in government, or anywhere else in the public sphere. This is simply wrong.
There should be room in all aspects of the public square for affirmations of religious devotion and recognition of the important role religion continues to play. This does not mean we should mandate school prayer. But it does mean we should allow students and government leaders to express religious views without condemnation and without criticism that religion is a purely private affair.
I am deeply concerned by the movement to cut off school funding for religious groups that require leaders to affirm the groups’ religious beliefs. We should encourage, not hamstring, students’ efforts to join together with co-believers. I am particularly concerned that some schools are eliminating funding for religious groups even while leaving funding for secular groups untouched. And I call on state officials to ensure that such schools are not using nondiscrimination codes as a fig leaf for getting rid of disfavored religious groups.
Third, we must support efforts to partner government with religious and charitable organizations to reach underserved populations. I believe that one of President George W. Bush’s most important, and least heralded, initiatives was his effort to tap into the faith community’s ability to provide services to poor and underprivileged communities. President Bush recognized the tremendous work that religious groups do to care for and support the needy. He also recognized that faith-based organizations can often provide services more efficiently and effectively than government. These efforts show that government and religion are not antagonists, but partners.
Fourth, we should highlight the good that religious leaders do for our nation. We are bombarded constantly with negative news about religious leaders. Pastors embezzling from their congregations, ministers cheating on their wives, priests abusing young worshippers. To be sure, there are bad apples in religious groups as there are everywhere. But the few bad apples do not spoil the whole barrel. Wouldn’t it be nice, for a change, if among all the unrelenting negativity there were some positive stories about lives changed for the better? There are awards, degrees, honoraria, prizes to be given. Commissions, boards, panels to be filled. Books, papers, studies to be written. Perhaps we could give greater thought to religious leaders in our communities that are deserving of such awards, or available to serve on such commissions, where their service can be recognized. Professional athletes and boorish musicians receive enough attention. Let’s try to reserve some for our upstanding religious leaders.
Fifth, we should work harder to convince people that religious freedom is worth protecting, a point made by Professor Christopher Lund at Wayne State University. For much of American history, we either assumed the answer or did not ask the question at all. But the heritage that began with social reality and became constitutional principle will not protect itself. Professor Lund writes that unless we do better at explicitly making this case, legislators will no longer enact laws such as RFRA, judges will not properly interpret constitutional provisions and statutes protecting religious freedom, and religious liberty will indeed no longer receive the standing it deserves.
Sixth, we must affirm our own individual faith and devotion. As community leaders, we have the ability to reach and influence broad audiences. By publicly affirming our faith, we both show that faith does have a place in the public sphere, and show community members that their leaders place a priority on religion. This does not mean we should become public pastors. But it does mean we should not be shy about our own beliefs. By demonstrating that religion is important to our own self-identity and desire to serve, we show our community members that religion is a thing of value and source of motivation.
And who knows? Showing others how religion has changed our lives may spark a desire in them to seek greater devotion in their own lives. There can be no greater protector of religious liberty than a society composed of individuals who actually value religion.
Changing culture is no easy thing, and we here in this room are too small a group to redirect a trajectory that has gone so far off course. But we are not the only people dedicated to religious liberty, and concerned that it is retreating both here in the United States and across the world. The Pew Forum reports that three-quarters of the world’s population live in countries with high government restrictions and significant social hostilities surrounding religion, and that level is increasing. In many places, religious freedom has never been social reality or constitutional principle.
Many of our neighbors and fellow community leaders share our concerns about religious liberty’s retreat. By reasserting religious freedom’s proper place we can appeal to those who recognize the importance of religious liberty but are unsure how to proceed. By making the public square more friendly for religion we can invite back into the square those who share our convictions but feel uncomfortable expressing those convictions in public.
By working to make government and religion partners once more rather than antagonists, we can revive the view that religion is a force for good rather than something to be swept under the rug. And by ensuring that our religious heritage maintains a robust role in our educational curricula, we can ensure that our children understand that religion helped our heroes accomplish great things and made our nation what it is today.
Religion may never be fashionable in the way it once was. Our insular and insulated media elites will work to that end. But if we can help our young people see religion as a force for good, they will be more inclined to protect it and to stand up against secularists who seek to rid religion from our history books and banish it from our public discourse.
A 2011 survey revealed that 90 percent of Americans believe that religious freedom is an inherent right that is not granted by government. That is perhaps a slim reed, but it is an essential belief for rebuilding the foundation of religious freedom. The preamble to our Constitution states that that charter was established to secure the blessing of liberty to ourselves and our posterity. True religious freedom is essential for that security.
I wish each of you God’s blessing in seeking to advance the cause of religious liberty, here in the United States and throughout the world.
Submitted by: The Offices of Sen. Orrin Hatch
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