Department of Defense Appropriations Act, 2016—Motion to Proceedby Senator Orrin G. Hatch
Posted on 2015-11-04
HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Religious Liberty In America Mr. HATCH. Mr. President, freedom of religion is one of the foundational principles of the Republic. It has long been central to our identity as a self-governing people, and as a cause, it has long enjoyed wide support across partisan and ideological divides for generations.
Recently, however, religious liberty has come under coordinated assault by those who would hastily discard one of our founding principles to serve a narrow, transient political agenda. Given how defending religious liberty has been one of the animating goals in my public life, I feel compelled to speak out against this disturbing development.
Since the end of the August recess, I have endeavored to speak regularly on the subject to remind my colleagues of the need to maintain our historic allegiance to this most American of values. So far, I have addressed the first principles of why we should protect religious freedom, as well as the legal and political history of the concept. Today I aim to address the role of religion in public life and its critical contribution to the preservation of freedom of religion.
One particular phrase has come to describe the relationship between faith and public life in this country: ``the separation of church and state.'' Over the years, the invocation of this phrase has become so rote that many consider it axiomatic. While the phrase itself is quite terse, it has become shorthand for a particular narrative about the history and status of religion in American life. This narrative traces back to Thomas Jefferson, who famously advocated for a ``wall of separation between church and state.'' Under Jefferson's leadership, Virginia passed the Law for the Establishment of Religious Freedom in 1786, which aimed to end state prescription and proscription of any particular religion.
Anchored in a cursory reference to Jefferson, generations of Americans have been brought up to believe that our founding principles demand that faith be driven out of government and kept contained to a private sphere with no role in public life and no semblance of interaction with the state. This narrative is flatly inconsistent with our history and our Constitution. Put plainly, the Jeffersonian model of strict separation was a novel experiment that constituted a decidedly minority viewpoint in the early Republic.
The dominant model at the time was embodied by the 1780 Massachusetts Constitution drafted by John Adams, which largely protected religious liberty but also instituted a ``mild and equitable establishment of religion'' that enshrined Christian piety and virtue. In Adams' view, as articulated by one scholar, ``Every polity must establish by law some form of public religion, some image and ideal of itself, some common values and beliefs to undergird and support the plurality of protected private religions. The notion that a state could remain neutral and purged of any public religion was [neither realistic nor desirable].'' Jefferson himself acknowledged that the statute he crafted in Virginia was a ``novel experiment'' that broke with practice not only in the American colonies but also in the United Kingdom and the wider Western world.
At the outbreak of the Revolution, the Anglican Church enjoyed official established status in Georgia, Maryland, North Carolina, South Carolina, Virginia, as well as in the New York City area. In Connecticut, Massachusetts, and New Hampshire, the system of municipal government empowered individual towns to choose a church to establish, resulting in Congregationalism as the established religion throughout most of New England. Only Delaware, New Jersey, Pennsylvania, and Rhode Island lacked officially established churches. Nevertheless, even these states without officially established churches--including famous havens for religious dissenters, such as Pennsylvania and Rhode Island-- maintained significant ties between church and state, including in matters of church finances, religious tests for public office, and blasphemy laws.
While the Revolution brought about a number of new state constitutions that officially disestablished a number of state churches--particularly the Church of England after the severing of political ties to the Crown--the advent of the new Republic did not bring about universal disestablishment or adherence to the model of strict separation.
At the time of the adoption of the First Amendment in 1791, about half--depending on one's exact definition--of the 14 States then admitted to the Union had an established church or allowed municipal governments to establish such a church. Moreover, every single state sponsored or supported one or more churches at the time. In the words of Notre Dame's Gerard Bradley, even ``Rhode Island, that polar star of religious liberty, maintained'' what would today constitute ``an establishment at the time it ratified the First Amendment.'' My purpose for bringing up this history is not to advocate for states to return to the era of officially established churches or to advocate for any of the restrictive measures of that time. Indeed, as a Mormon, I am keenly aware both of how the machinery of government can be used to oppress religious minorities and of how a faith's flourishing comes not from the State's sanction or promotion but rather from the dedication and devotion of individuals, families, and communities. Instead, my purpose is to note the plain incongruity between the conventional wisdom of rigid separation between church and state supposedly commanded since the founding by the establishment clause and the actual history of religion in public life in the days of the early Republic.
This apparent disconnect can be resolved by an examination of the text of the Constitution. The text of the First Amendment reads: ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'' Note the exact formulation: ``Congress shall make no law regarding the establishment of religion. . . .'' On its face, the language [[Page S7753]] affects only one actor--Congress--not States and local governments and not individual citizens. Put another way, at the time of its adoption, the First Amendment neither created an individual right to be free from religion nor limited the power of the States to establish religion; it simply created a structural limit on Federal power.
The debates over the ratification of the Bill of Rights confirmed this interpretation. As a general matter, the Establishment Clause received relatively little attention in the ratification debates in the state legislatures and among the public. Indeed, it hardly seems tenable that States would have adopted a measure at odds with their ongoing practices with little discussion or dispute. What attention the establishment clause did receive made it clear that its language was intended to prevent the Federal Government from choosing a preferred religious secret--a logical move befitting a new nation made up of states with a wide variety of religious traditions and approaches to established religion.
Furthermore, the ratification debates clarify that the ratifiers viewed official establishment of a particular church as direct financial support for a preferred sect, wholly distinct from the nondiscriminatory support and establishment of religion in general, which the Establishment Clause was not thought to limit.
For a century and a half, this misunderstanding of the Establishment Clause endured with little challenge. Before the Civil War, the Supreme Court decided only three Establishment Clause cases of any significance. Indeed, the major debate on the subject during the intervening years revolved around a proposed change to the Constitution: the 1875 Blaine amendment that sought to extend the application of the Establishment Clause to the states and to ban explicitly any church's access to public funds. This legislative effort, borne largely out of anti-Catholic prejudice, failed--a failure that further underscored the settled nature of the Establishment Clause at that time.
Unfortunately, religion was not spared from the destructive judicial activism of a Supreme Court that spun wildly out of control in the mid- 20th century. A new crop of justices, disinclined to follow the traditional judicial role of applying the law as written, instead sought to remake the law according to their left-wing worldview. From inventing new rights for criminals to mandating nearly unlimited access to abortion on demand, the Court in this period left few stones unturned in its radical rewriting of the Constitution.
The longstanding understanding of the Establishment Clause was one of the mid-century Court's first victims. Abandoning the understanding of the clause I have previously detailed--an understanding that was clearly supported by text, structure, history, and precedent--the Court turned the Establishment Clause on its head.
In the error-filled words of Justice Black, the Court said in Everson v. Board of Education that ``the establishment of religion clause of the First Amendment means at least this: Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.'' This pronouncement had no basis in text, history, or law. To the contrary, it was diametrically opposed to the understanding of the relationship between government and religion and between the federal government and the states that had endured for much of America's history. Justice Black justified the Court's entirely novel, ahistorical view by turning to Jefferson: ``In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.'' Thus was born the now-commonplace view that the establishment clause was meant to create a high wall separating church and state.
This decision represents a complete inversion of the previously settled, proper understanding of the establishment clause. The command that Congress should make no law regarding an establishment provision is turned from a structural protection against federal power into an individual right to be free from religion. The text protecting the states' power to decide whether and what church to establish is, in the words of one scholar, paradoxically and perversely transformed into a limitation on states' authority to make such a decision. The critical distinction between official establishment of a particular church and general support of religion without regard to particular sects is casually discarded in favor of a blanket prohibition on religious involvement in public life. In the words of two scholars, throughout its decision, the Court ``not only ascribed to the establishment clause separationist content; it imagined a past to confirm that interpretation. Both majority and dissent treated the history of the United States as if it were the history of Virginia. Despite dissimilarity of language, the justices equated the establishment clause with Virginia's statute on religious freedom, thereby appropriating for the federal provision the separationist message and rhetoric of the state enactment.'' As I have explained, the history of Virginia on the subject of state establishment of religion is not the history of the United States. Rather, Virginia was, as Jefferson said, a ``novel experiment'' on the issue. Other states continued to support state-established churches. The wall-of-separation doctrine, which the Court created out of whole cloth in Everson, was not the American tradition. It was an idiosyncrasy of Jefferson's.
Upon this fundamentally flawed foundation, the federal courts have constructed a jurisprudence that threatens any place for religion in the public sphere. Embracing the demonstrably false notion that ``the three main evils against which the establishment clause was intended to afford protection [were] sponsorship, financial support, and active involvement of the sovereign and religious activity,'' the Supreme Court soon adopted the so-called Lemon test for any law to withstand: ``First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . finally, the statute must not foster an excessive government entanglement with religion.'' In announcing this test, the Supreme Court sounded the note of modesty, noting that the justices could ``only dimly perceive the lines of demarcation in this extraordinarily sensitive area of Constitutional law.'' This admission--though ironic, given the Court's ambition to complete the transformation of the establishment clause away from its historical and textual foundation--was, if anything, an understatement. The Court's efforts to draw a line between the permissible and the impermissible have completely failed. Justice Rehnquist rightly diagnosed the cause of these bizarre results: These difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The . . . test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service.
The Court has responded to these acknowledged difficulties not by abandoning its flawed establishment clause jurisprudence but by inventing new tests while never overturning Lemon or the flawed understanding that undergirds it. By one scholar's estimation, the Supreme Court has employed 9 alternate tests of impermissible establishment of religion; another scholar identified 16. While the exact count understandably varies, the result is the same: muddled law that lacks any principled means of application. This lack of clarity enables judicial activism. By liberating the judiciary from the obligation to apply a clear rule, this muddied framework invites judges and justices to implement their own policy views as law.
While this framework shows confusion in marginal cases, its overall effect is clear: to squeeze religion out of government and to deny religious organizations the opportunities afforded to secular counterparts. While the addition of principled jurists to the Court has turned momentum against previous excesses, the thrust of the Court's misguided establishment clause jurisprudence remains dominant.
The Court's flawed wall-of-separation jurisprudence has kept religion out of the public square and fed the idea that [[Page S7754]] religion is a private matter to be practiced within the confines of one's church or home. Legal and social pressures have taken their toll, and the results are stark: no prayer in school; no new Ten Commandments displays--or even Christmas or Hanukkah displays--unless carefully secularized; a widespread prejudice in many quarters against public officials talking about God or about their beliefs in public; and even the crusade every December to replace the phrase ``Merry Christmas'' with ``Happy Holidays.'' The conventional wisdom peddled by advocates for stringent exclusion of religion from the public sphere is that aggressive enforcement of their vision of the establishment clause enhances religious freedom. Unfortunately, nothing could be further from the truth. The erroneous wall-of-separation doctrine has narrowed the role of religion in public discourse, fueling the view that religion is a private matter rather than a fundamental precept of American civil society. Even members of this esteemed body have fallen prey to the disturbing claim that religious freedom does not extend much further than the church door. Such an approach undermines religious liberty in numerous ways. It counsels government to avoid any perceived entanglement with religion-- even accommodation of religious practice, at the core of the right to free exercise. It tells the religious believer that in order to participate fully in public life, he should cabin and hide his religious devotion: Just abandon your religious affiliation, and the government will partner with your school or charity. Just muzzle your faith, and you can fully participate in representative government and lawmaking. Just keep your religion private, and you won't face a swarm of litigation.
Indeed, despite the hard-fought progress in recent years both in protecting religious liberty and in restoring sanity to the courts' approach to the establishment clause, this notion of strict separation continues to exert a pernicious influence, shrinking the sphere of acceptable religious exercise. In so doing, it undermines religious liberty and limits the ways in which faith enriches our society. Restoring a proper relationship between faith and public life must continue to be a top priority as a key component of our broad reference to protect religious liberty for future generations.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.