Attorney General William P. Barr Delivers Remarks to the Law School and
the de Nicola Center for Ethics and Culture at the University of Notre Dame, South Bend, IN, Friday, October 11, 2019,
Remarks as
prepared for delivery.
Thank you, Tom, for
your kind introduction. Bill and Roger, it’s great to be with you.
Thank you to the Notre
Dame Law School and the de Nicola Center for Ethics and Culture for graciously
extending an invitation to address you today. I’d also like to express gratitude
to Tony de Nicola, whose generous support has shaped – and continues to shape –
countless minds through examination of the Catholic moral and intellectual
tradition.
Today, I would like to
share some thoughts with you about religious liberty in America. It’s an
important priority in this Administration and for this Department of Justice.
We have set up a task
force within the Department with different components that have equities
in this area, including the Solicitor General’s Office, the Civil Division, the
Office of Legal Counsel, and other offices. We have regular meetings. We keep
an eye out for cases or events around the country where states are misapplying
the Establishment Clause in a way that discriminates against people of faith,
or cases where states adopt laws that impinge upon the free exercise of
religion.
From the Founding Era
onward, there was strong consensus about the centrality of religious liberty in
the United States.
The imperative of
protecting religious freedom was not just a nod in the direction of piety. It
reflects the Framers’ belief that religion was indispensable to sustaining our
free system of government.
In his renowned 1785
pamphlet, “Memorial and Remonstrance Against Religious Assessments,” James
Madison described religious liberty as “a right towards men” but “a duty
towards the Creator,” and a “duty….precedent both in order of time and degree
of obligation, to the claims of Civil Society.”
It has been over 230
years since that small group of colonial lawyers led a revolution and launched
what they viewed as a great experiment, establishing a society fundamentally
different than those that had gone before.
They crafted a
magnificent charter of freedom – the United States Constitution – which
provides for limited government, while leaving “the People” broadly at liberty
to pursue our lives both as individuals and through free associations.
This quantum leap in
liberty has been the mainspring of unprecedented human progress, not only for
Americans, but for people around the world.
In the 20th century,
our form of free society faced a severe test.
There had always been
the question whether a democracy so solicitous of individual freedom could
stand up against a regimented totalitarian state.
That question was
answered with a resounding “yes” as the United States stood up against and
defeated, first fascism, and then communism.
But in the 21st century,
we face an entirely different kind of challenge.
The challenge we face
is precisely what the Founding Fathers foresaw would be our supreme test as a
free society.
They never thought the
main danger to the republic came from external foes. The central question was
whether, over the long haul, we could handle freedom. The question was whether
the citizens in such a free society could maintain the moral discipline and
virtue necessary for the survival of free institutions.
By and large, the
Founding generation’s view of human nature was drawn from the classical
Christian tradition.
These practical
statesmen understood that individuals, while having the potential for great
good, also had the capacity for great evil.
Men are subject to
powerful passions and appetites, and, if unrestrained, are capable of
ruthlessly riding roughshod over their neighbors and the community at large.
No society can exist
without some means for restraining individual rapacity.
But, if you rely on
the coercive power of government to impose restraints, this will inevitably
lead to a government that is too controlling, and you will end up with no
liberty, just tyranny.
On the other hand,
unless you have some effective restraint, you end up with something equally
dangerous – licentiousness – the unbridled pursuit of personal appetites at the
expense of the common good. This is just another form of tyranny – where the
individual is enslaved by his appetites, and the possibility of any healthy
community life crumbles.
Edmund Burke summed up
this point in his typically colorful language:
“Men are qualified for
civil liberty, in exact proportion to their disposition to put chains upon
their appetites.... Society cannot exist unless a controlling power be placed
somewhere; and the less of it there is within, the more there must be without.
It is ordained in the eternal constitution of things that men intemperate minds
cannot be free. Their passions forge their fetters.”
So the Founders
decided to take a gamble. They called it a great experiment.
They would leave “the
People” broad liberty, limit the coercive power of the government, and place
their trust in self-discipline and the virtue of the American people.
In the words of
Madison, “We have staked our future on the ability of each of us to govern
ourselves…”
This is really what
was meant by “self-government.” It did not mean primarily the mechanics by
which we select a representative legislative body. It referred to the capacity
of each individual to restrain and govern themselves.
But what was the
source of this internal controlling power? In a free republic, those restraints
could not be handed down from above by philosopher kings.
Instead, social order
must flow up from the people themselves – freely obeying the dictates of
inwardly-possessed and commonly-shared moral values. And to control
willful human beings, with an infinite capacity to rationalize, those moral
values must rest on authority independent of men’s will – they must flow from a
transcendent Supreme Being.
In short, in the
Framers’ view, free government was only suitable and sustainable for a
religious people – a people who recognized that there was a transcendent moral
order antecedent to both the state and man-made law and who had the discipline
to control themselves according to those enduring principles.
As John Adams put it,
“We have no government armed with the power which is capable of contending with
human passions unbridled by morality and religion. Our Constitution was made
only for a moral and religious people. It is wholly inadequate for the
government of any other.”
As Father John
Courtney Murray observed, the American tenet was not that:
“Free government is
inevitable, only that it is possible, and that its possibility can be realized
only when the people as a whole are inwardly governed by the recognized
imperatives of the universal moral order.”
How does religion
promote the moral discipline and virtue needed to support free government?
First, it gives us the
right rules to live by. The Founding generation were Christians. They believed
that the Judeo-Christian moral system corresponds to the true nature of man.
Those moral precepts start with the two great commandments – to Love God with
your whole heart, soul, and mind; and to Love Thy Neighbor as Thyself.
But they also include
the guidance of natural law – a real, transcendent moral order which flows from
God’s eternal law – the divine wisdom by which the whole of creation is
ordered. The eternal law is impressed upon, and reflected in, all created
things.
From the nature of
things we can, through reason, experience, discern standards of right and wrong
that exist independent of human will.
Modern secularists
dismiss this idea of morality as other-worldly superstition imposed by a
kill-joy clergy. In fact, Judeo-Christian moral standards are the ultimate
utilitarian rules for human conduct.
They reflect the rules
that are best for man, not in the by and by, but in the here and now. They are
like God’s instruction manual for the best running of man and human society.
By the same token,
violations of these moral laws have bad, real-world consequences for man and
society. We may not pay the price immediately, but over time the harm is real.
Religion helps promote
moral discipline within society. Because man is fallen, we don’t automatically
conform ourselves to moral rules even when we know they are good for us.
But religion helps
teach, train, and habituate people to want what is good. It does not do this
primarily by formal laws – that is, through coercion. It does this through
moral education and by informing society’s informal rules – its customs and
traditions which reflect the wisdom and experience of the ages.
In other words,
religion helps frame moral culture within society that instills and reinforces
moral discipline.
I think we all
recognize that over the past 50 years religion has been under increasing
attack.
On the one hand, we have
seen the steady erosion of our traditional Judeo-Christian moral system and a
comprehensive effort to drive it from the public square.
On the other hand, we
see the growing ascendancy of secularism and the doctrine of moral relativism.
By any honest assessment,
the consequences of this moral upheaval have been grim.
Virtually every
measure of social pathology continues to gain ground.
In 1965, the
illegitimacy rate was eight percent. In 1992, when I was last Attorney General,
it was 25 percent. Today it is over 40 percent. In many of our large urban
areas, it is around 70 percent.
Along with the
wreckage of the family, we are seeing record levels of depression and mental
illness, dispirited young people, soaring suicide rates, increasing numbers of
angry and alienated young males, an increase in senseless violence, and a
deadly drug epidemic.
As you all know, over
70,000 people die a year from drug overdoses. That is more casualities in a
year than we experienced during the entire Vietnam War.
I will not dwell on
all the bitter results of the new secular age. Suffice it to say that the
campaign to destroy the traditional moral order has brought with it immense
suffering, wreckage, and misery. And yet, the forces of secularism, ignoring
these tragic results, press on with even greater militancy.
Among these militant
secularists are many so-called “progressives.” But where is the progress?
We are told we are
living in a post-Christian era. But what has replaced the Judeo-Christian moral
system? What is it that can fill the spiritual void in the hearts of the
individual person? And what is a system of values that can sustain human social
life?
The fact is that no
secular creed has emerged capable of performing the role of religion.
Scholarship suggests
that religion has been integral to the development and thriving of Homo
sapiens since we emerged roughly 50,000 years ago. It is just for the
past few hundred years we have experimented in living without religion.
We hear much today
about our humane values. But, in the final analysis, what undergirds these
values? What commands our adherence to them?
What we call
"values" today are really nothing more than mere sentimentality,
still drawing on the vapor trails of Christianity.
Now, there have been
times and places where the traditional moral order has been shaken.
In the past, societies
– like the human body – seem to have a self-healing mechanism – a
self-correcting mechanism that gets things back on course if things go too far.
The consequences of
moral chaos become too pressing. The opinion of decent people rebels. They
coalesce and rally against obvious excess. Periods of moral entrenchment follow
periods of excess.
This is the idea of
the pendulum. We have all thought that after a while the “pendulum will swing back.”
But today we face
something different that may mean that we cannot count on the pendulum swinging
back.
First is the force,
fervor, and comprehensiveness of the assault on religion we are experiencing
today. This is not decay; it is organized destruction. Secularists, and their
allies among the “progressives,” have marshaled all the force of mass
communications, popular culture, the entertainment industry, and academia in an
unremitting assault on religion and traditional values.
These instruments are
used not only to affirmatively promote secular orthodoxy, but also drown out
and silence opposing voices, and to attack viciously and hold up to ridicule
any dissenters.
One of the ironies, as
some have observed, is that the secular project has itself become a religion,
pursued with religious fervor. It is taking on all the trappings of a religion,
including inquisitions and excommunication.
Those who defy the
creed risk a figurative burning at the stake – social, educational, and
professional ostracism and exclusion waged through lawsuits and savage social
media campaigns.
The pervasiveness and
power of our high-tech popular culture fuels apostasy in another way. It
provides an unprecedented degree of distraction.
Part of the human
condition is that there are big questions that should stare us in the face. Are
we created or are we purely material accidents? Does our life have any meaning
or purpose? But, as Blaise Pascal observed, instead of grappling with these
questions, humans can be easily distracted from thinking about the “final
things.”
Indeed, we now live in
the age of distraction where we can envelop ourselves in a world of digital
stimulation and universal connectivity. And we have almost limitless ways of
indulging all our physical appetites.
There is another
modern phenomenon that suppresses society’s self-corrective mechanisms – that
makes it harder for society to restore itself.
In the past, when
societies are threatened by moral chaos, the overall social costs of
licentiousness and irresponsible personal conduct becomes so high that society
ultimately recoils and reevaluates the path that it is on.
But today – in the
face of all the increasing pathologies – instead of addressing the underlying
cause, we have the State in the role of alleviator of bad consequences. We call
on the State to mitigate the social costs of personal misconduct and
irresponsibility.
So the reaction to
growing illegitimacy is not sexual responsibility, but abortion.
The reaction to drug
addiction is safe injection sites.
The solution to the
breakdown of the family is for the State to set itself up as the ersatz husband
for single mothers and the ersatz father to their children.
The call comes for
more and more social programs to deal with the wreckage. While we think we are
solving problems, we are underwriting them.
We start with an
untrammeled freedom and we end up as dependents of a coercive state on which we
depend.
Interestingly, this
idea of the State as the alleviator of bad consequences has given rise to a new
moral system that goes hand-in-hand with the secularization of society.
It can be called the system of “macro-morality.” It is in some ways an
inversion of Christian morality.
Christianity teaches a
micro-morality. We transform the world by focusing on our own personal morality
and transformation.
The new secular
religion teaches macro-morality. One’s morality is not gauged by their private
conduct, but rather on their commitment to political causes and collective
action to address social problems.
This system allows us
to not worry so much about the strictures on our private lives, while we find
salvation on the picket-line. We can signal our finely-tuned moral
sensibilities by demonstrating for this cause or that.
Something happened
recently that crystalized the difference between these moral systems. I was
attending Mass at a parish I did not usually go to in Washington,
D.C. At the end of Mass, the Chairman of the Social Justice Committee got
up to give his report to the parish. He pointed to the growing homeless problem
in D.C. and explained that more mobile soup kitchens were needed to feed them.
This being a Catholic church, I expected him to call for volunteers to go out
and provide this need. Instead, he recounted all the visits that the Committee
had made to the D.C. government to lobby for higher taxes and more spending to
fund mobile soup kitchen.
A third phenomenon
which makes it difficult for the pendulum to swing back is the way law is being
used as a battering ram to break down traditional moral values and to establish
moral relativism as a new orthodoxy.
Law is being used as
weapon in a couple of ways.
First, either through
legislation but more frequently through judicial interpretation, secularists
have been continually seeking to eliminate laws that reflect traditional moral
norms.
At first, this
involved rolling back laws that prohibited certain kinds of conduct. Thus, the
watershed decision legalizing abortion. And since then, the legalization of
euthanasia. The list goes on.
More recently, we have
seen the law used aggressively to force religious people and entities to
subscribe to practices and policies that are antithetical to their faith.
The problem is not
that religion is being forced on others. The problem is that irreligion and
secular values are being forced on people of faith.
This reminds me of how
some Roman emperors could not leave their loyal Christian subjects in peace but
would mandate that they violate their conscience by offering religious
sacrifice to the emperor as a god.
Similarly, militant
secularists today do not have a live and let live spirit - they are not content
to leave religious people alone to practice their faith. Instead, they seem to
take a delight in compelling people to violate their conscience.
For example, the last
Administration sought to force religious employers, including Catholic
religious orders, to violate their sincerely held religious views by funding
contraceptive and abortifacient coverage in their health plans. Similarly,
California has sought to require pro-life pregnancy centers to provide notices
of abortion rights.
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.
Yet here is where the
battle is being joined, and I see the secularists are attacking on three
fronts.
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.
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.
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 complementarity 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.
Norb
Leahy, Dunwoody GA Tea Party Leader
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