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Orrin H.
Republican UT

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  • Religious Freedom

    by Senator Orrin G. Hatch

    Posted on 2015-12-10

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    HATCH. Mr. President, today I complete the series of floor speeches on religious freedom that I began in September. My purpose in this series is to present the full story of religious freedom in the hope that we may better understand and appreciate it and draw guidance for the future. Charting a path forward requires understanding where we have been and taking stock of where we are right now.

    The story of religious freedom, as I have laid it out, shows that we must choose between two starkly different paths. The story begins with religious freedom itself and why it is uniquely important and requires special protection. I said in September: No decision is more fundamental to human existence than the decision we make regarding our relationship to the Divine. No act of government can be more intrusive or more invasive of individual autonomy and free will than the act of compelling a person to violate his or her sincerely chosen religious beliefs.

    The story continues with the central place of religious freedom in America's identity. At no time in world history has religious freedom been such an integral part of a nation's origin and character. The seeds were planted centuries before the actual founding of this country with one religious community after another coming to these shores to freely practice their faith.

    When Congress enacted the International Religious Freedom Act less than two decades ago, we declared that religious freedom ``undergirds the very origin and existence of the United States.'' The story of religious freedom in America includes understanding both its status and its substance. In October, I explained how the status of religious freedom can be summarized as both inalienable and preeminent. Religious freedom is inalienable because, as the Declaration of Independence asserts, it comes from God, not from government. And because it is endowed, that is part of our very humanity. Religious freedom is preeminent or, as James Madison put it, ``precedent, both in order of time and in degree of obligation to the claims of civil society.'' I also explained that the substance of religious freedom can be understood in terms of its depth, or what it includes, and its breadth, or to whom it applies. Religious freedom, for example, includes much more than religious belief or speech. In fact, protecting in law both religious belief and the exercise of that belief preceded the First Amendment by 150 years. Madison again gives us guidance to finding the exercise of religion as the freely chosen manner of discharging the duty an individual believes he or she owes to God. This includes both belief and behavior in public and in private, individually and collectively. The substance of religious freedom also includes its breadth of application to all human beings.

    The First Amendment protects not certain exercises of religion or the exercise of religion by certain persons, but the free exercise of religion itself.

    As I mentioned, Congress unanimously enacted the International Religious Freedom Act. The vote in this body was 98 to 0, and 21 Senators serving today--12 Republicans and 9 Democrats--voted for this legislation, as did Vice President Biden and Secretary of State John Kerry, who were serving here at that time. That law declares our religious freedom to be a universal human right, a pillar of our Nation, and a fundamental freedom. This is the path of religious freedom on which we have traveled for three centuries, before a very different path emerged.

    In November, I outlined how the courts have begun to distort the First Amendment's protection for religious freedom. America's Founders included a narrow prohibition on government establishment of religion as a support for the broad individual freedom to exercise religion. Since the mid-20th century, however, courts have instead expanded the establishment clause into a virtual ban on religion in public life and narrowed the free exercise clause so that government may more easily restrict the practice of religion itself.

    I also examined how the courts, the Obama administration, and State legislatures are contributing to attacks on religious freedom right here in America. The common theme in these attacks is that far from being special, religious freedom must yield to other values or political objectives. Even worse, some are arguing that religious freedom is actually something negative that should be limited or even suppressed. These attacks not only target particular exercises of religion but undermine religious freedom itself.

    Rather than inalienable, these attacks would turn religious freedom into something granted or restricted by the government at its whim. Instead of preeminent, these attacks would reduce religious freedom to something optional and subservient. Rather than something deep and broad, these attacks would turn religious freedom into something shallow and narrow.

    State courts, for example, have imposed heavy fines on business owners who decline, based on their religious beliefs, to provide services such as photography, flowers or catering for same-sex marriages. The decision by these business owners did not prevent anyone from getting married or from having the wedding they chose. Other photographers, florists, and bakers gladly stepped up to do business. The only real effect of these fines was to punish these individuals for exercising their religious beliefs. By punishing the exercise of religion itself, these courts are saying that religious freedom must necessarily yield to other political priorities.

    ObamaCare made the same two-part attack on religious freedom but on a much larger scale. First, far from trying to accommodate religious freedom in developing ObamaCare or its implementing regulations, neither Congress [[Page S8587]] nor the Obama administration gave religious freedom any consideration whatsoever. This is appalling in several different ways. Not only does it reflect a callous attitude toward this fundamental right, but it ignores the Religious Freedom Restoration Act's command that Federal law properly accommodate religious freedom. The only way to avoid that requirement is for Congress explicitly to exempt a statute from RFRA's standards. Congress did not do so.

    But consider this. On January 15, 2010, President Obama issued his first Religious Freedom Day proclamation. He reaffirmed ``our nation's enduring commitment to the universal human right of religious freedom.'' Just 2 months later, he signed into law the statute that so blatantly ignored and would be used to undermine that very universal human right.

    The second way that ObamaCare undermines religious freedom is by imposing significant burdens on the actual exercise of religion. The Department of Health and Human Services, for example, tried to force business owners to provide insurance coverage for methods of birth control that violate their religious beliefs. Thankfully, last year the Supreme Court said the Obama administration should have more properly accommodated religious freedom.

    Another case is now before the Supreme Court in which the Obama administration is demanding that a religious organization be forced to participate in providing insurance coverage for practices that violate their religious beliefs. The Obama administration, with its army of smart lawyers and deep well of taxpayer dollars, is fighting tooth and nail to make sure its political objectives quash religious freedom.

    Last week, I outlined the benefits that religion and religious freedom provide. It is essential to forming and securing our basic rights. Religion was the engine driving great social movements, such as abolition and civil rights. It motivates significantly greater contributions by individuals to charities of all kinds and inspires many of the largest charitable organizations in the country. But religion is not simply beneficial to society; it is an indispensable feature of any free government. Without religion and the moral instruction it provides, freedom falters and democracy all too easily dissolves into tyranny.

    In the 18th Century, the Massachusetts Constitution of 1780 declared that ``the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality.'' In the 21st Century, Harvard professor Mary Ann Glendon argues persuasively that religious freedom reduces societal violence and correlates with democratic longevity.

    The story of religious freedom that I have offered over the last few months presents a choice that we must make as we consider the way forward. On one path, religious freedom is an inalienable and preeminent right of all people; on the other path, it is an uncertain and optional possibility for some people. On one path the government must accommodate religious freedom; on the other path religious freedom must accommodate the government. One path is consistent with our history, founding, character, commitments, and an example to the rest of the world. The other path rejects that history, turns its back on our commitments, and abandons human rights in favor of shifting political agendas.

    Here is how I put it in one of my speeches last month: Subjugating religious freedom 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 our government pays to enjoy the continued consent of the American people.

    We must decide whether we still believe what our Nation, our people, and our leaders have said and done. James Madison wrote that religious freedom is an inalienable right that takes precedence over the claims of civil society.

    Thomas Jefferson said that religious freedom is ``the most inalienable and sacred of all human rights.'' Franklin Roosevelt said that religious freedom is a fundamental and essential human freedom.

    The United States voted for the Universal Declaration of Human Rights in 1948, signed the Helsinki Accords in 1975, and ratified the International Covenant on Civil and Political Rights in 1992.

    Each of these identifies religious freedom as a fundamental human right that includes both belief and behavior in public and in private, individually and collectively.

    Congress enacted the Religious Freedom Restoration Act almost unanimously in 1994. I should know; I was the principal advocate for it. It sets a tough standard for allowing government interference with religious freedom and offers this protection for all exercises of religion by all people. Democrats and Republicans, liberals and conservatives, adherents of different faiths--everyone joined hands on these basic principles. And I might add that Hatch and Kennedy joined hands as well.

    In the 2013 Religious Freedom Day proclamation, President Obama said that religious freedom is an essential part of human dignity. This is the path on which America began, the path America's Founders embraced, the path that all three branches of government have recognized, and the path we have reaffirmed countless times.

    The burden is on those who believe that we should now leave this path. Those who no longer believe that religious freedom is an inalienable right and an essential human freedom should say so. Those who no longer believe that, as our statutes and treaties assert, religious freedom is a fundamental right and a pillar of our Nation should be honest and up front about it. Those who believe that the shifting political priorities of the day trump religious freedom should candidly make their case.

    In the last week, since the terrorist attack in San Bernardino, we have glimpsed some of the ugliness that is down the path where politics trumps religious freedom. Many of our leaders expressed support and offered thoughts and prayers for the victims and their families. Those expressions were met by some with disdain, ridicule, and scoffing.

    Reporters, bloggers, activists, and even Members of Congress sent the message that thoughts and prayers are really not much of anything and in any event are legitimate only if they come from those who want more gun control.

    Finally, I want to highlight for my colleagues another source of guidance in choosing the future path for religious freedom. In June 1988, the most diverse group of leaders in American history presented the Williamsburg Charter to the Nation. Its purpose was to reaffirm religious freedom for all citizens, to set out the place of religious freedom in American public life, and to offer guiding principles for the future. Former Presidents Jimmy Carter and Gerald Ford and the chairmen of the two political parties signed it. The president of the AFL-CIO and the chairman of the U.S. Chamber of Commerce signed it. Presidents of universities and bar associations signed it. Leaders of faith communities, including the National Council of Churches and National Association of Evangelicals, Seventh-day Adventists, the Synagogue Council of America, and the Church of Jesus Christ of Latter- day Saints signed it.

    What could possibly unite such a disparate group? It would have to be something too general to be useful--perhaps something like sunshine or friendship--or something so profound that we simply must sit up and pay attention. The first principles of religious freedom affirmed by the Williamsburg Charter are these: First, religious freedom is an inalienable right that is ``premised upon the inviolable dignity of the human person. It is the foundation of, and is integrally related to, all other rights and freedoms secured by the Constitution.'' Second, the ``chief menace to religious liberty today is the expanding power of government control over personal behavior and the institutions of society, when the government acts not so much in deliberate hostility to, but in reckless disregard of, communal belief and personal conscience.'' Third, limiting religious liberty ``is allowable only where the State has borne a heavy burden of proof that the limitation is justified--not by any ordinary public interest, but by a supreme [[Page S8588]] public necessity--and that no less restrictive alternative to limitation exists.'' These are the principles that should guide our way forward.

    Religious freedom is inalienable. Religious freedom is threatened when government either directly burdens or fails to accommodate it. Government burdens on religious freedom must be the least restrictive means of achieving a compelling government purpose or supreme public necessity.

    These principles inform proper resolution of the challenges that religious freedom will certainly face ahead.

    Some are calling for government to revoke or deny such things as tax- exempt status, certifications, or licenses for religious organizations with certain beliefs. I already mentioned how some courts are using anti-discrimination statutes to trump religious freedom.

    Applying the principles I have discussed would require the government to make the case that such impositions are the least restrictive way to further a supreme public necessity.

    Another challenge will be in the development, rather than the implementation, of anti-discrimination laws. Applying the appropriate principles requires that such legislation properly accommodate religious freedom.

    Title VII of the Civil Rights Act of 1964, for example, includes a religious exemption. I supported the Employment Non-Discrimination Act in the 113th Congress because, in addition to incorporating that exemption, it also prohibited retaliation against those who qualify for the exemption. My State of Utah this year enacted an anti- discrimination statute that similarly included a robust exemption for religious organizations.

    Earlier this year, however, Senators introduced the Equality Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across several areas such as employment, housing, and education. It not only fails to incorporate the existing title VII religious exemption, it contains no accommodation for religious freedom at all.

    This is an example of the path that rejects religious freedom as even worthy of consideration. Such legislation should not become law unless it properly accommodates religious freedom.

    This is a time for choosing. The story of religious freedom is both an inspiring narrative and a cautionary tale. It brings to mind the inscription on a statue fronting the National Archives that ``eternal vigilance is the price of liberty.'' The heritage of religious freedom that took centuries to build could be dismantled in a fraction of that time. The right path means balance of accommodation; the wrong path means exclusion and suppression. The way forward requires us to choose the right path to make sure our actions speak louder than our words.

    Mr. President, I apologize for going over by 5 minutes.

    I yield the floor.


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