Religious Freedom 3:
Time for Push Back, Defending Religious Freedom vs. Secularism Attacks
For anyone who has a religious faith, by far the most important part of exercising that faith is the teaching of that religion to our children. The passing on of the faith. There is no greater gift we can give our children and no greater expression of love. ~William Barr, US Attorney General
William Barr Speech Notre Dame Part 3
This refusal to accommodate the free exercise of religion is relatively recent. Just 25 years ago, there was broad consensus in our society that our laws should accommodate religious belief.
In 1993, Congress passed the Religious Freedom Restoration Act – RFRA. The purpose of the statute was to promote maximum accommodation to religion when the government adopted broad policies that could impinge on religious practice.
At the time, RFRA was not controversial. It was introduced by Chuck Schumer with 170 cosponsors in the House, and was introduced by Ted Kennedy and Orrin Hatch with 59 additional cosponsors in the Senate. It passed by voice vote in the House and by a vote of 97-3 in the Senate.
Recently, as the process of secularization has accelerated, RFRA has come under assault, and the idea of religious accommodation has fallen out of favor.
Because this Administration firmly supports accommodation of religion, the battleground has shifted to the states. Some state governments are now attempting to compel religious individuals and entities to subscribe to practices, or to espouse viewpoints, that are incompatible with their religion.
Ground zero for these attacks on religion are the schools. To me, this is the most serious challenge to religious liberty.
For anyone who has a religious faith, by far the most important part of exercising that faith is the teaching of that religion to our children. The passing on of the faith. There is no greater gift we can give our children and no greater expression of love.
For the government to interfere in that process is a monstrous invasion of religious liberty.
Secularists Attacking on 3 Fronts
Yet here is where the battle is being joined, and I see the secularists are attacking on three fronts.
1) Public School Curriculum
The first front relates to the content of public school curriculum. Many states are adopting curriculum that is incompatible with traditional religious principles according to which parents are attempting to raise their children. They often do so without any opt out for religious families.
Thus, for example, New Jersey recently passed a law requiring public schools to adopt an LGBT curriculum that many feel is inconsistent with traditional Christian teaching. Similar laws have been passed in California and Illinois. And the Orange County Board of Education in California issued an opinion that “parents who disagree with the instructional materials related to gender, gender identity, gender expression and sexual orientation may not excuse their children from this instruction.”
Indeed, in some cases, the schools may not even warn parents about lessons they plan to teach on controversial subjects relating to sexual behavior and relationships.
This puts parents who dissent from the secular orthodoxy to a difficult choice: Try to scrape together the money for private school or home schooling, or allow their children to be inculcated with messages that they fundamentally reject.
2) State Policies that starve Religious Schools
A second axis of attack in the realm of education are state policies designed to starve religious schools of generally-available funds and encouraging students to choose secular options. Montana, for example, created a program that provided tax credits to those who donated to a scholarship program that underprivileged students could use to attend private school. The point of the program was to provide greater parental and student choice in education and to provide better educations to needy youth.
But Montana expressly excluded religiously-affiliated private schools from the program. And when that exclusion was challenged in court by parents who wanted to use the scholarships to attend a nondenominational Christian school, the Montana Supreme Court required the state to eliminate the program rather than allow parents to use scholarships for religious schools.
It justified this action by pointing to a provision in Montana’s State Constitution commonly referred to as a “Blaine Amendment.” Blaine Amendments were passed at a time of rampant anti-Catholic animus in this country, and typically disqualify religious institutions from receiving any direct or indirect payments from a state’s funds.
The case is now in the Supreme Court, and we filed a brief explaining why Montana’s Blaine Amendment violates the First Amendment.
3) Use of State Laws to force religious schools to bow to Secularism
A third kind of assault on religious freedom in education have been recent efforts to use state laws to force religious schools to adhere to secular orthodoxy. For example, right here in Indiana, a teacher sued the Catholic Archbishop of Indianapolis for directing the Catholic schools within his diocese that they could not employ teachers in same-sex marriages because the example of those same-sex marriages would undermine the schools’ teaching on the Catholic view of marriage and complementarities between the sexes.
This lawsuit clearly infringes the First Amendment rights of the Archdiocese by interfering both with its expressive association and with its church autonomy. The Department of Justice filed a statement of interest in the state court making these points, and we hope that the state court will soon dismiss the case.
Taken together, these cases paint a disturbing picture. We see the State requiring local public schools to insert themselves into contentious social debates, without regard for the religious views of their students or parents. In effect, these states are requiring local communities to make their public schools inhospitable to families with traditional religious values; those families are implicitly told that they should conform or leave.
At the same time, pressure is placed on religious schools to abandon their religious convictions. Simply because of their religious character, they are starved of funds – students who would otherwise choose to attend them are told they may only receive scholarships if they turn their sights elsewhere.
Simultaneously, they are threatened in tort and, eventually, will undoubtedly be threatened with denial of accreditation if they adhere to their religious character. If these measures are successful, those with religious convictions will become still more marginalized.
I do not mean to suggest that there is no hope for moral renewal in our country.
But we cannot sit back and just hope the pendulum is going to swing back toward sanity.
As Catholics, we are committed to the Judeo-Christian values that have made this country great.
And we know that the first thing we have to do to promote renewal is to ensure that we are putting our principles into practice in our own personal private lives.
We understand that only by transforming ourselves can we transform the world beyond ourselves.
This is tough work. It is hard to resist the constant seductions of our contemporary society. This is where we need grace, prayer, and the help of our church.
Beyond this, we must place greater emphasis on the moral education of our children.
Education is not vocational training. It is leading our children to the recognition that there is truth and helping them develop the faculties to discern and love the truth and the discipline to live by it.
We cannot have a moral renaissance unless we succeed in passing to the next generation our faith and values in full vigor.
The times are hostile to this. Public agencies, including public schools, are becoming secularized and increasingly are actively promoting moral relativism.
If ever there was a need for a resurgence of Catholic education – and more generally religiously-affiliated schools – it is today.
I think we should do all we can to promote and support authentic Catholic education at all levels.
Finally, as lawyers, we should be particularly active in the struggle that is being waged against religion on the legal plane.
We must be vigilant to resist efforts by the forces of secularization to drive religious viewpoints from the public square and to impinge upon the free exercise of our faith.
I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.
Thank you for the opportunity to talk with you today. And God bless you and Notre Dame.