Press Release: Hatch Speaks on the Status and Substance of Religious Freedom

Senator Orrin Hatch, R-Utah, took to the Senate Floor to deliver the third in a series of speeches on religious liberty.

While Hatch’s first speech outlined the basic principles of religious liberty, and the second speech detailed the history of religious liberty, the third speech provided background on the status and substance of religious freedom.




(Via YouTube)


“The status of religious freedom can be summarized as inalienable and as preeminent,” Hatch said. “James Madison repeatedly identified the free exercise of religion according to conviction and conscience as an inalienable right.  To America’s founders, as they expressed in the Declaration of Independence, inalienable rights have two dimensions.  They come from God, not from government.  And these rights are endowed, that is, they are inseparable from us and part of our very humanity.  Government did not provide them, and government cannot take them away.”

 The full speech, as prepared for delivery, is below.

Mr. President, two weeks ago, I inaugurated a series of speeches about religious freedom.  In the first speech, I said that the rights of conscience and religious exercise go to the very heart of who we are as human beings and how we make sense of the world.  No decisions are more fundamental to human existence than those regarding our relationship to the divine, and no act of government is more invasive of individual liberty than compelling a person to violate his or her sincerely chosen religious beliefs.  This is why religious freedom, in and of itself, is so important and must be specially protected.

Last week, I spoke about religious freedom in practice here in America.  At no time in world history has religious freedom been such an integral part of a nation’s origin and character.  As Congress said when we unanimously enacted the International Religious Freedom Act in 1998, the right to freedom of religion undergirds the very origin and existence of the United States. Professor Michael McConnell, director of the Constitutional Law Center at Stanford, describes how, by the time the Bill of Rights was ratified, America had “already experienced 150 years of a higher degree of religious diversity than had existed anywhere in the world.”

Together, those two speeches told some of the story of religious freedom in America.  Today, Mr. President, I will build on that foundation and examine the status and the substance of religious freedom.  More fully understanding these three aspects of religious freedom – its story, its status, and its substance – will help us better evaluate where are today and inform where we should go in the future.

The status of religious freedom can be summarized as inalienable and as preeminent.

James Madison repeatedly identified the free exercise of religion according to conviction and conscience as an inalienable right.  To America’s founders, as they expressed in the Declaration of Independence, inalienable rights have two dimensions.  They come from God, not from government.  And these rights are endowed, that is, they are inseparable from us and part of our very humanity.  Government did not provide them, and government cannot take them away.

When Virginia developed its constitution in 1776, George Mason’s draft of a Declaration of Rights said that the exercise of religion should receive the fullest toleration by government.  Madison objected and offered language that became Section 16 of the Virginia Declaration of Rights, setting what one scholar calls a new standard for freedom of conscience.  Here is Madison’s language:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.

This understanding of religious freedom did not end with America’s founding generation.  In 1853, the Senate Foreign Relations Committee approved a resolution asserting that, in treaties with foreign nations, the United States should secure for our citizens residing abroad “the right of worshipping God, freely and openly, according to the dictates of their own conscience.”  The committee report on this resolution described religious freedom as fundamental, allowing “the utmost latitude and freedom of conscience” so that each individual “is absolutely free to act in conformity to his own convictions.”

The fact that religious freedom is inalienable leads to another aspect of its status.  In his 1785 Memorial and Remonstrance against Religious Assessments, Madison explained that religious exercise “is precedent, both in order of time and in degree of obligation, to the claims of civil society.”  Supreme Court Justice Arthur Goldberg once wrote that to America’s founders, religious freedom was preeminent among fundamental rights. 

Presidents and Congress have similarly identified the status of religious freedom as preeminent among rights.  In his 1941 State of the Union Address, for example, President Franklin Roosevelt included religious freedom as one of four essential human freedoms.  Just four years later, the United States signed the Universal Declaration of Human Rights, which asserts that religious freedom is an inalienable right universal to all members of the human family. 

The last several presidents have issued annual proclamations declaring January 16 to be Religious Freedom Day.  Those proclamations, by presidents of both parties, have said that religious freedom is a core value of our democracy, that it is essential to our dignity as human beings, and that no freedom is more fundamental than the right to practice one’s religious beliefs.   

Turning to Congress, the House Foreign Affairs Committee in 1955 approved a resolution “reaffirming the rights of the people of the world to freedom of religion.”  The committee said that this resolution “recognizes that the basic strength of the United States is spiritual and that all races, people, and nations of the world share with us a dependence on such strength.”

I mentioned earlier that Congress in 1998 unanimously enacted the International Religious Freedom Act.  This body passed it by a vote of 98-0.  Twenty-one Senators serving today, 12 Republicans and nine Democrats, voted for this legislation.  So did Vice President Joe Biden and Secretary of State John Kerry when they served here.  That law declares religious freedom to be a universal human right, a pillar of our nation, and a fundamental freedom.

In subsequent speeches, I will explore the responsibility of government regarding an inalienable and preeminent right such as religious freedom, but I want to note two things at this point.  First, as the Declaration of Independence asserts, government exists to secure inalienable rights.  Second, if a right is preeminent, it must be properly accommodated when government takes actions such as enacting legislation and issuing regulations. 

The status of religious freedom is that it is inalienable and preeminent.  Let me turn now to exploring the substance of religious freedom in terms of both its depth, or what religious freedom is, and its breadth, or those to whom religious freedom belongs.

First, depth. Starting in the early 17th century, religious freedom in America has been understood to be grounded in the individual right of conscience.  Roger Williams established a settlement in 1636 for those he described as the distressed of conscience, and subsequent town agreements and ordinances restricted government to civil things and protected theliberty of conscience

This liberty of conscience encompasses not only what an individual believes, but also how an individual acts on that belief.  The Maryland Toleration Act of 1649, for example, provided that no person shall be troubled “in respect of his or her religion nor in the free exercisethereof.” 

The Virginia Declaration of Rights was the model for the Bill of Rights in the U.S. Constitution.  The free exercise of religion, in fact, is the first individual right listed in the First Amendment.  That phrase, the free exercise of religion, is very important.  The First Amendment protects not simply certain exercises of religion, or the exercise of religion by certain parties, but the free exercise of religion itself.

Religious freedom is more than religious speech, which would be otherwise protected by the First Amendment, or attending a worship service on the Sabbath.  It is, as Madison put it, the freely chosen manner of discharging the duty an individual believes he or she owes to God. 

This robust substance of religious freedom is described in the Universal Declaration of Human Rights, which the United States signed in 1948.  Article 18 states:

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.

The United States signed the Helsinki Accords in 1975.  Section seven declares that signatories “will recognize and respect the right of the individual to profess and practice, alone or in community with others, religion or belief in accordance with the dictates of his own conscience.”  Such rights derive from “the inherent dignity of the human person and are essential for his full and free development.”

In 1992, the United States ratified the International Covenant on Civil and Political Rights.  Article 18 echoes the same robust definition of religious freedom as the right, individually or in community with others, in public or in private, to believe and to practice one’s religion.  This robust description expresses the depth of religious freedom.

The second dimension to the substance of religious freedom is its breadth, or its application across society.  Earlier I mentioned the Maryland Toleration Act of 1649, which protected the free exercise of religion.  It did so, however, only for Trinitarian Christians.  The Puritans of Massachusetts Bay Colony outlawed the Quakers and punished heretics.  In fact, Roger Williams went to what would become Rhode Island after being banished from Massachusetts. 

In those days, religious freedom had depth but not much breadth, and yet seeds were being planted.  In 1657, residents of a community known today as Flushing, New York, signed a petition called the Flushing Remonstrance.  This petition protested a ban on certain religious practices that prevented the Quakers from worshipping, and the signers stated that they would let everyone decide for themselves how to worship.

America’s founders were the ones who asserted most directly that religious freedom is inalienable and, accordingly, established its breadth in the First Amendment.  Rather than being limited to adherents of a particular faith, this protection applies to anyone acting according to the dictates of conscience.

The status and substance of religious freedom became concretely reflected in Supreme Court decisions in the 20th century.  In Sherbert v. Verner, a woman was fired from a state government job for refusing to work on Saturday as required by her Seventh-Day Adventist faith.  The Supreme Court affirmed that the door to government regulation of religious beliefwas “tightly shut” and set a standard that only barely opened the door to government regulation of religious behavior.

The Court said that government limitations on religiously motivated conduct could be justified only by “the gravest abuses, endangering paramount interests.”  Therefore, the Court said, government must have more than a mere rational reason for restricting religious practice.  In 1981, the Supreme Court reaffirmed the Sherbert standard by holding that government may “justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”

This holding was consistent with the path of American history regarding religious freedom.  The protection of something, after all, goes hand in hand with that thing’s value.  If religious freedom is inalienable and preeminent, then it must properly be protected by law.

All of that changed in 1990.  In a case titled Employment Division v. Smith, two Oregon state employees were fired for using peyote, a controlled substance, in their Native American religious ceremonies.  The law did not single out religious use of this drug, but its application to these individuals seriously inhibited the practice of their religion.  The Court should have applied the Sherbert standard and required the state to show a compelling justification for applying this law against religious adherents. 

Instead, the Court turned the Shebert standard on its head.  The Court did exactly what it had rejected in Sherbert less than 30 years earlier, holding that the government needs nothing more than a rational reason for a general law or regulation that restricts the practice of religion.  In other words, so long as the government is not explicitly targeting religion, the First Amendment provides no protection at all for the free exercise of religion.  The Court effectively demoted religious freedom from a fundamental right to little more than an optional fringe benefit.

In my opening statement at the Senate Judiciary Committee’s hearing in September 1992 on a legislative response this decision, I said that the Smith standard is “the lowest level of protection the Court could have afforded religious conduct.”

In Smith, the Court made it sound as if the Sherbert decision had spawned an epidemic of people using religious objections to avoid obeying laws.  The truth is that courts had not applied the Sherbert standard strictly at all, but with what the Congressional Research Service has described as a light hand.  In the years between the Court’s decision in Sherbert establishing the compelling interest standard and its decision in Smith abandoning that standard, federal courts rejected more than 85 percent of religious exercise claims. 

Government today compromises, burdens, and even prohibits the exercise of religion not by overt assault but by covert impact.  Zoning ordinances can restrict where churches may meet, whether they may expand their meeting places, and what services they may offer; religious institutions may be forced to hire individuals who do not share their faith; and regulations may prohibit individuals from wearing items required by their faith or require employees to work on their Sabbath.

If government exists to secure inalienable rights such as religious freedom, it must properly respect and accommodate that right even as it becomes more and more intrusive.  In fact, it is the increasing reach of government that makes vigilance about protecting religious freedom more, not less, important.  Requiring a compelling reason to restrict religious practice identifies religious practice as important.  Requiring only a rational reason to restrict religious practice identifies it as worth very little.

It is hard to overstate the impact of the Smith decision.  It stopped dead in its tracks the long and steady progress toward real protection for religious freedom.  Government has its greatest impact on religion today not by direct suppression, but by indirect restriction.  If the status of religious freedom as inalienable and preeminent compels its protection, then reducing that status, as the Court did in Smith, opens religious freedom to restriction and prohibition.

Congress responded to the Smith decision by enacting the Religious Freedom Restoration Act, or RFRA.  We were motivated by the very understanding of religious freedom that the Supreme Court had abandoned, namely, that religious freedom is inalienable and preeminent.  RFRA does by statute what the First Amendment is supposed to do.  Under RFRA, government may substantially burden the exercise of religion only if doing so is the least restrictive means of achieving a compelling government purpose.

Congress enacted RFRA for one simple reason.  While the First Amendment protected the free exercise of religion itself, by changing what the First Amendment means, the Supreme Court in Smith put the free exercise of religion itself at risk.  The Court made every exercise of religion by everyone vulnerable to government restriction, interference, and even prohibition.  RFRA restored religious freedom by setting a standard of protection that reflects the true value of what it protects and applies that standard across the board.

This principle is so powerful that RFRA not only passed Congress almost unanimously, but it was supported by a coalition of unprecedented ideological breadth.  That consensus existed because we rejected numerous requests to go beyond setting the standard and dictate how it should be applied in certain cases.  We refused to do that in RFRA because the First Amendment does not do that.  We set the right standard and left its application to the courts in individual cases.

In a 1994 religious exercise case, Justice David Souter urged the Court to reconsider its decision in Smith and described what is truly at stake.  He wrote:  “The extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God.”  Properly understanding the status and substance of religion freedom naturally puts those relationships in order.  Misunderstanding or distorting those principles interferes with these relationships and imperils this fundamental human right. 

In 1997, the Supreme Court held that RFRA applies only to the federal government because Congress did not have authority to extend its protection to state and local government.  As Smith had done, this decision made every religious practice by everyone vulnerable to government restriction.  By these two decisions, the Supreme Court ensured that no one in America had either constitutional or statutory protection to practice their faith.

I introduced the Religious Liberty Protection Act in June 1998 to re-establish the religious freedom that the Supreme Court had again taken away.  Like RFRA did, this legislation set a tough legal standard reflecting the true status and substance of religious freedom and left it to the courts to apply this standard in individual cases.  Unfortunately, though it had bipartisan support, consideration of this bill stalled in the 105th Congress.

I next introduced the Religious Land Use and Institutionalized Persons Act in July 2000 as another attempt to protect religious freedom for as many, and as completely, as possible.  It set the same rigorous standard for government interference in the practice of religion, requiring that such actions be the least restrictive means of achieving a compelling government purpose.  Within two weeks, both the Senate and House had passed this legislation without objection.  As he had done with RFRA, President Bill Clinton signed this legislation into law.

It is shocking how little it took, just two Supreme Court decisions, to stall America’s centuries-long journey of religious freedom.  As a result, the law today does not adequately protect religious freedom.  You and I can claim the First Amendment’s protection only if the federal government explicitly targets our religious practice.  The First Amendment is not available at all when state and local government restrict or even prohibit religious practice altogether.  Even the legislation passed unanimously by Congress is unavailable when state and local governments restrict religious freedom. 

Mr. President, we live in troubled times and many things we once took for granted are being challenged and even attacked.  Today, the rhetoric about religious freedom does not match the reality.  In his 1810 State of the Union address, President James Madison said that a well-instructed people can alone be a free people.  The more we understand how religious freedom is inalienable and preeminent, how it is deep in substance and broad in application, the better equipped we are to promote and defend it.  Only then will government not only pay lip service to the fundamental right to religious freedom, but will provide for and properly accommodate it so that it will be a reality for all of us.