Hatch Speaks on Contemporary Threats to Religious Liberty

Senator Orrin Hatch, R-Utah, took to the Senate floor to deliver the fifth in a series of speeches on religious liberty this week.

Senator Hatch has previously delivered speeches on the basic principles, the history, and the status and substance of religious liberty. Last week, he addressed the critical balance between faith and public life. Today’s speech focused on the contemporary threats religious liberty faces at home.

In ways that are both surprising and unprecedented, religious liberty is under attack here in the United States.  I speak not merely of attacks on particular practices, but also of attacks on the very idea of religious liberty itself—on the idea that there should be room in society for believers to live and to worship in ways that differ from prevailing orthodoxy.

The campaign against religious liberty has three prongs: the courts, the Obama administration, and state legislatures.  My goal today is to explain how each of these institutions is undermining the vitality of religious life in our country and why what they are doing is wrong.

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

Mr. President, I rise today to speak once again on the topic of religious liberty.  This is the fifth in a series of addresses I have given on this vitally important subject.  In my previous remarks, I have discussed why religious liberty matters, why it’s important, and why it deserves special protection from government interference.  I have also detailed the history of religious liberty in the United States in order to show that the desire for religious freedom was central to our nation’s founding and to the very idea of America.  From the beginning, religious liberty has been a preeminent value in American life: government accommodates religion, not the other way around.  Lastly, in my previous remarks I have sought to explain how religion has always had a robust public role in our society and to rebut the wrongheaded, ahistorical view that religion is a purely private matter that should be kept out of the public domain.

Today I turn to the status of religious liberty in contemporary American life.  My argument is straightforward.  In ways that are both surprising and unprecedented, religious liberty is under attack here in the United States.  I speak not merely of attacks on particular practices, but also of attacks on the very idea of religious liberty itself—on the idea that there should be room in society for believers to live and to worship in ways that differ from prevailing orthodoxy.

The campaign against religious liberty has three prongs: the courts, the Obama administration, and state legislatures.  My goal today is to explain how each of these institutions is undermining the vitality of religious life in our country and why what they are doing is wrong.

Many Americans are unaware of the substantial threats religious liberty faces here in the United States.  They look abroad to the Middle East or to Africa, where Islamist regimes are killing Christians and other dissenters from religious orthodoxy, and suppose that by comparison, things are not so bad here in the United States.  While it is true that religious minorities in America do not face death or serious physical harm for choosing to live their faith, we must not blind ourselves to the ways in which our government institutions are undermining religious liberty.  We must instead come to recognize that powerful forces in our society are working actively to restrict the ability of religious believers to live out their faith and to foist upon them government mandates that are flatly inconsistent with their most deeply held beliefs.

I begin with the courts, which I identified as the first front in the fight against religious liberty.

For a number of years now, there has been a steady stream of cases in which everyday Americans have been sanctioned—sometimes severely—for adhering to religious tenets that conflict with current political orthodoxy.  The examples are myriad.  A photographer in New Mexico was fined $7,000 dollars for declining to photograph a same-sex commitment ceremony on the grounds that her religious beliefs teach that marriage is a union between one man and one woman and that she could not in good conscience lend her services to the event.  A florist in Washington state was fined $1,000 dollars for declining to provide flower arrangements for a same-sex wedding.  And a couple in Oregon who owned a cake shop were ordered to pay $135,000 dollars for telling a same-sex couple that they could not provide a cake for their wedding ceremony because the shop owners adhere to a traditional, biblically based view of marriage.

The message that these court cases send is clear: if you are a religious individual with religiously rooted views that differ from the current policies of the state, you follow your beliefs at your own peril.  Even those who don’t endorse the view that it’s appropriate for businesses to deny service to customers on the basis of deeply held beliefs must concede that the fines and other sanctions in these cases present a direct threat to religious liberty.

Note that there was no suggestion in any of these cases that the defendant’s refusal to provide service actually prevented the same-sex couple from obtaining the desired items.  In each case, other photographers, florists, and bakers without religious or moral objections stood ready to assist.  The state was not stepping in to ensure that the couples had access to needed goods and services.  Rather, the injury to the couple in each case was that the defendant would not sanction their ceremony.  The state did not like the message the defendant’s religious beliefs conveyed and so ordered the defendant to pay a potentially ruinous fine. 

The notion that government can override—or punish individuals for—deeply held religious beliefs merely because those beliefs deviate from prevailing views strikes at the very heart of religious liberty.  Religious liberty is the right of an individual to practice his or her beliefs even in the face of government, social, or community opposition.  If all that is needed for government to override a person’s deeply held beliefs is a disagreement over whether the person’s beliefs send the right message, then religious liberty is weak indeed.  It is no longer a preferred value that government must make room for, but rather a common, run-of-the-mill interest that government can override essentially at will.

Recent court cases have undermined religious liberty and threatened the integrity of our religious institutions in other ways as well.  One case, decided by the Supreme Court about five years ago, held that schools can require student religious groups to accept nonbelievers as leaders, even though doing so could undermine the group’s mission and install as leaders individuals who do not share the group’s core beliefs.  Other cases have sown confusion about students’ ability to express religious conviction in school settings.  Teachers and school administrators have barred students from wearing religious imagery, from affirming their faith in essays and speeches, and from performing religious music because they fear running afoul of judicial prohibitions on state establishment of religion.  Other officials have denied religious groups access to state facilities to worship or to hold meetings, again fearing potential lawsuits. 

But courts are not the only place where religious liberty is under attack.  I am sorry to say, Mr. President, that the current administration has done much to weaken religious freedom and to undermine rights of conscience.

Certainly the most notorious instance of the administration’s efforts to undermine religious liberty is the Obamacare contraception mandate.  This provision requires employers to provide their employees access to contraceptives and abortion-inducing drugs even when the employer has profound moral objections to such drugs.  There is a narrow exemption for houses of worship, but countless other religious employers—including religious schools, hospitals, and charities—must either comply with the mandate in violation of their religious beliefs or pay substantial financial penalties.

The administration has also stripped funding from religious groups that refuse, as a matter of conscience, to toe the administration’s line on abortion and contraception.  In a remarkable and short-sighted move, the administration revoked funding for the U.S. Conference of Catholic Bishops’s relief program for victims of human trafficking because the Conference declined, on religious grounds, to refer victims for abortion or contraceptives.  So not only is the administration using the threat of financial loss to pressure religious groups to violate their beliefs, but it is also harming trafficking victims by hindering the ability of religious groups who differ from the administration on matters of conscience to aid victims.

The administration, too, has put federal contractors that subscribe to traditional views on marriage and sexuality on the horns of a terrible dilemma.  Last year the President issued an executive order prohibiting contractors from taking into account sexual orientation or gender identity when hiring employees.  The order contains no exemptions for contractors with religious affiliations.  Under the President’s order, a contractor with a religious mission may be forced to hire an individual who holds views that run counter to that mission in order to remain eligible for federal contracts.  The President’s order thus creates the very real possibility that religiously affiliated contractors will have to choose between impairing the integrity of their organization and competing for federal funds.

In addition to pursuing these troubling policies, the administration has also taken extreme and unsupportable positions in court filings that, if adopted, would undermine religious freedom.  Before the Supreme Court, the administration made the remarkable claim that federal law authorizes the federal government to involve itself in the hiring and firing of church ministers.  Specifically, the administration said that federal antidiscrimination laws override the First Amendment right of churches to select whomever they wish as ministers and instead allow the administration to actually sue a church if it believes a particular hiring or firing was improper.  This radical position would allow the federal government to insert itself into some of the most important decisions churches make regarding religious doctrine and governance. 

Thankfully, the Supreme Court rejected the administration’s position unanimously.  Indeed, in a striking rebuke, the Court called the administration’s claim that the First Amendment provides no more protection to a church in selecting its leaders than it does to a “labor union[] or a social club . . . remarkable.”  But the fact that the administration felt comfortable making this argument, and apparently thought that it was a correct argument, speaks volumes regarding the administration’s dim view of religious liberty.

More recently, the administration has signaled that the forced legalization of same-sex marriage will present religious schools and institutions with significant challenges in reconciling school standards with federal antidiscrimination laws.  At oral argument in the Obergefell [Oh-ber-ga-fell] case, one of the Justices asked the Solicitor General whether a religious school that opposed same-sex marriage would lose its tax-exempt status.  The Solicitor General responded, “It’s certainly going to be an issue.”  With those seven words, the Solicitor General made clear that religious institutions that adhere to traditional views regarding marriage and sexuality—such as by providing housing only to opposite-sex couples—will face potentially staggering financial consequences for their commitment to their religious convictions.

The third front in the fight against religious liberty is the state legislatures.  In many ways, what we are seeing at the state level is a mirror of what the administration has been doing at the federal level.

Just as the administration has stripped funding from religious organizations that refuse to follow the administration’s liberal social policies, states have withdrawn funding and licenses from groups that adhere to traditional religious views.  Massachusetts, for example, passed a law requiring state-licensed adoption agencies to place children with same-sex couples.  As a result, Catholic Charities, which had operated adoption services in the state for over 100 years, was forced to shut down its adoption program.  Catholic Charities affiliates in Illinois were similarly forced to close after the state announced that it would no longer provide funding to adoption agencies that decline to place children with same-sex couples.  Other religiously affiliated groups and schools have lost contracts, faced loss of accreditation, and been denied permission to use public facilities because of their doctrinally based views on family, marriage, and sexuality.  The mayor of Houston even went so far as to subpoena internal church communications as part of an intimidation campaign against churches that opposed a city nondiscrimination ordinance.  Far from treating religious liberty as a preeminent value, many states and localities have thrust it aside in favor of other goals.

Another disturbing trend at the state level has been the growing opposition to state religious freedom laws.  Over 20 years ago, I helped lead a broad bipartisan effort in Congress to pass the Religious Freedom Restoration Act, or RFRA.  RFRA sought to undo a misguided Supreme Court decision that authorized Congress and the states to abridge religious freedom so long as their actions did not specifically target religion.  RFRA says that government may not substantially burden a person’s exercise of religion unless doing so is necessary to further a compelling government interest.

The coalition that helped pass RFRA included members as ideologically diverse as Ted Kennedy, Pat Leahy, Strom Thurmond, and Phil Gramm.  Groups from across the political spectrum, such as the ACLU, People for the American Way, the Traditional Values Coalition, and the Christian Legal Society, strongly supported the bill.  Given this broad, cross-ideological support, RFRA passed the House without recorded opposition and passed the Senate 97 to 3.  Nearly unanimous.  For a major piece of legislation like RFRA to pass Congress with only three recorded no votes was nearly unprecedented, and indicated the breadth of support at the time for the view that religious liberty deserves special protection.

Twenty years later, however, the consensus in favor of robust protections for religious liberty has splintered.  Whereas the federal RFRA was able to pass Congress almost without opposition, recent efforts to enact state-level RFRAs have run into substantial resistance.  Efforts in Indiana and Arizona, to name two examples, ignited media firestorms and generated strong pushback from groups who mistakenly viewed the measures as discriminatory.  Both bills, it should be emphasized, were modeled after the federal RFRA, but the political dynamics have changed so dramatically over the last twenty years that protecting religious freedom has gone from being the rare issue on which all sides can agree to being a political hot potato.  

Some groups that supported the federal RFRA have even taken the position that future RFRAs must contain carve-outs for particular groups or particular issue areas.  Many of these same groups endorsed an effort by Senate Democrats last year to exempt from the federal RFRA all federal laws and regulations related to health care. 

Of course, any carve-outs in religious liberty protections undermine those protections, because they limit the field in which religious liberty has full effect.  For this reason the federal RFRA contains no such carve-outs.  Indeed, opposition to carve-outs was a key element in both assembling and maintaining the RFRA coalition two decades ago.  Even if members had varying views on the merits of certain practices, the one thing all could agree on is that religious liberty is a fundamental, universal value that should apply equally to everyone. 

But the price of admission for many groups today is a willingness to cut back on religious liberty in instances where religious belief conflicts with progressive social goals.  Twenty years ago this sort of hostage-taking was nowhere on the agenda.  But religious liberty has now become a secondary goal—or worse, an impediment—for many liberal groups, who value progressive social policy over protecting the rights of believers.  This backtracking by many formerly stalwart defenders of religious liberty represents one of the most serious ways that religious freedom is under attack in our country.

I’ll note one other political sea change that is undermining religious liberty here in the United States.  For many years, groups on the left have been advocating for laws to prohibit discrimination in hiring and employment on the basis of sexual orientation.  I am in general agreement with such laws and do not believe that sexual orientation should be grounds for discrimination or mistreatement.  Many of the groups advocating for these laws have previously been willing to include exemptions for religious organizations that hold traditional views on marriage and sexuality.  I believe that such exemptions are appropriate and strike the right balance by protecting rights to nondiscrimination while enabling religious organizations to hold true to their beliefs.  Indeed, I believe it is essential for nondiscrimination laws to properly accommodate religious liberty and I would actively oppose any such law that fails to account for the rights of religious believers.

Unfortunately, many groups that were previously willing to support religious exemptions in nondiscrimination laws have reversed course.  For example, many groups that supported last Congress’s federal Employment Non-Discrimination Act, or ENDA—which would prohibit discrimination in the workplace on the basis of sexual orientation—have withdrawn their support for the Act because it contains a robust exemption for religious organizations.  This Congress, they are instead supporting the Equality Act, which contains no religious exemption at all.

I supported ENDA because I believed it reflected the right balance between nondiscrimination and religious liberty.  I still believe it does.  But many groups on the left have indicated that they are willing to cast religious liberty aside in furtherance of other goals.  For these groups, religious liberty no longer deserves special protection.  It is no longer a preeminent value.  Rather, it should be accommodated only so far at it is convenient and does not interfere with other objectives.  This is a sea change, and one that bodes ill for the future vitality of religious freedom.

Mr. President, I said at the outset that religious liberty is under attack in America in ways that are both surprising and unprecedented.  Certainly the willingness of former defenders of religious freedom to turn their backs on believers is both.  

I would like to close by returning briefly to the New Mexico photographer case I mentioned earlier, for that case contains perhaps the most surprising and unprecedented feature of all.  In a concurring opinion, one of the judges in the case called the requirement to violate one’s religious beliefs when they conflict with state social policy “the price of citizenship.”  That statement represents a complete inversion of the relationship between government authority and religious liberty here in America.

When we are born or become American citizens, we do not surrender our rights of conscience to the government.  We do not pledge our allegiance to a secular God.  We retain our right to religious liberty.  Indeed, not only do we retain our right; our government guarantees our right to freely practice our faith in accordance with the dictates of conscience.  As the Declaration of Independence instructs, all men—and women—are endowed by their Creator with certain unalienable rights, and it is the fundamental purpose of government to secure those rights.  

If there is a price we pay as American citizens, it is not that we give up our God-given rights, first and foremost of which is the right of religious liberty.  It is that we agree to work together to promote the common good of our country.

Mr. President, subjugating religious beliefs to government decrees is not the price of citizenship.  To the contrary, respecting and honoring the fundamental rights of all Americans is the price that our government pays in order to enjoy the continued consent of the American people.  Those who attack religious liberty and seek to devalue its place in society fundamentally misunderstand this key point. 

Unfortunately, too many in America today—from the courts to the Obama administration to the state legislatures—undervalue religious freedom and view it at best as a secondary goal.  People of goodwill here in Congress and across our nation need to recognize that religious liberty is under attack and that unless we stand up and vocally support the rights of believers to live their faith, we will find much of what we have fought for, and much of what our forebears fought for, swept away.  We must fortify the rights of believers to follow their conscience even when their fellow citizens, or elected officials, would prefer a different course.

I will have much more to say on this topic in future remarks.