[Congressional Record (Bound Edition), Volume 161 (2015), Part 14]
[Senate]
[Pages 20022-20024]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           RELIGIOUS FREEDOM

  Mr. 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

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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 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.

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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 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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