[Congressional Record Volume 161, Number 167 (Tuesday, November 10, 2015)]
[Senate]
[Pages S7899-S7901]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           RELIGIOUS LIBERTY

  Mr. HATCH. 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 is 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 itself. 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 our 
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 tenants that 
conflict with current political orthodoxy. The examples are myriad. A 
photographer in New Mexico was fined $7,000 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 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 for telling a 
same-sex couple that they could not provide a cake for their wedding 
ceremony because the shop owners adhere to the 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 is 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 services 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 couple 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 threaten the 
integrity of our religious institutions in other ways as well. One 
case, decided by the Supreme Court about 5 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 places where religious liberty is under 
attack. I am sorry to say that the current administration has done much 
to weaken religious freedom and to undermine the 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 shortsighted move, 
the administration

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revoked funding for the U.S. Conference of Catholic Bishops' 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 that 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.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted 
to finish these remarks.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HATCH. 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 leader than it does to a 
``labor union or a social club . . . remarkable.'' The fact that the 
administration felt comfortable making this argument, and apparently 
thought it was a correct argument, speaks volumes regarding this 
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 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 that ``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 happens to be 
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 refused 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. That is outrageous. 
Catholic Charities affiliates in Illinois were similarly forced to 
close after the State announced it would no longer provide funding to 
adoption agencies that declined to place children with same-sex 
couples. Other religiously affiliated groups and schools have lost 
contracts, faced loss of accreditation, and have 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 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 
protection for religious liberty has splintered. Whereas the Federal 
RFRA was able to pass Congress almost without opposition--the whole 
Congress, that is--recent efforts to enact State level RFRAs have run 
into substantial resistance. Efforts in Indiana and Arizona are two 
good examples. They ignited media firestorms and generated strong 
pushback from groups who mistakenly viewed the measures as 
discriminatory. It should be emphasized both bills were modeled after 
the Federal RFRA, but the political dynamics have changed so 
dramatically over the last 20 years that protecting religious freedom 
has gone from being the rare issue on which all sides agree to becoming 
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 on 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 that

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value what they call progressive social policy over protecting the 
rights of believers. I hate the use of that word ``progressive'' 
because it is anything but. This backtracking by many stalwart 
defenders of religious liberty represents one of the most serious ways 
religious freedom is under attack in this great country.
  I will note one other political sea change that is undermining 
religious liberty in the United States. For many years, groups on the 
left have been advocating for laws to prohibit discrimination 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 mistreatment. 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 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 Nondiscrimination 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 took some criticism 
for doing so. I still believe it does reflect the right balance, but 
many groups on the left have indicated 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 as 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.
  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 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 
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 our own 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.
  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 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 misunderstands 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 good will 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, but 
with that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.

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