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Sen. Mike Lee: Conserving Religious Liberty For All

mike lee

As prepared for delivery
The Kirby Center
June 11, 2015

Thank you very much. It’s an honor to be here.

Thank you, Matt, for all that you do – through Hillsdale’s Kirby Center – to advance the cause of liberty in our politics, in our schools, and in our society. It’s always important – in a free society like ours – to have institutions like Hillsdale College and its Kirby Center that teach and defend the principles that have made us who we are as a nation. But it is indispensable at this moment in our nation’s history, when cherished American ideals are being questioned, and in some cases threatened, as never before.

Today I would like to discuss the challenges and opportunities presented by the vulnerability of one of those ideals in particular: America’s tradition of religious diversity, tolerance, and freedom.

In many ways, our tradition of religious liberty is the dog that didn’t bark. Americans take for granted religious toleration and pluralism because – blessedly – we have never known anything else. We have no comparable scars or memories of the sectarian violence that has plagued mankind in almost every other time and place. That can make it hard for us to appreciate the monumental achievement our religious freedom represents and the radical departure it was from the cultures from whence we came.

For most of human history, prior to America’s Founding, a free conscience was not seen as an essential human good, but as a threat. From Athens to Rome to London, human beings everywhere believed that religion was too important to be left to individual choice. The City of God was submitted – for safekeeping – to the City of Man.

So – from ancient tribes to modern empires – governments derived their authority from the church, and vice versa. Uniform obedience to the established religion was enforced by the state. Dissent from official orthodoxy was outlawed. Minority faiths were suppressed and heresy was punished as a crime.

America was different, not by accident or whim, but by design. Because America was founded by men and women, families and congregations who turned the oppression of the ages inside out. They – we – insisted that it is religion that is too important – too central to human happiness and social flourishing – to be managed by, and subject to, mere politicians.

These were the pilgrims, the dissenters, and the conscientious objectors who had the courage to flee religious persecution in the Old World and the conviction to build a community of religious liberty in the New World. They were ordinary men and women, but they had an extraordinary devotion to the belief that it is not only possible but necessary to “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”

The principle they established was not mere religious toleration, but religious liberty. There is an important difference. Under a policy of religious toleration, religious dissenters are accepted – at the discretion of those in power – but they are still understood as “Others.” Religious liberty, on the other hand, is a principle rooted in the natural right of all human beings to the free exercise of religion.

In a letter to the Jewish Congregation of Newport, Rhode Island, George Washington praised religious liberty in America as going beyond mere toleration. In America, Washington wrote:

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it [were] by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.

In practice, religious liberty in America has meant that the government’s job is not to tell people what to believe or how to discharge their religious duties, but to protect the space for all people of all faiths – and of no faith at all – to seek religious truth and to order their lives accordingly. No matter who you are or where you come from, regardless of your race or wealth, your political affiliation or sexual orientation, to be free in America is to know you won’t be forced to compromise your conscience as a price of your citizenship.

Like so much else that made America great and exceptional, religion here breathes in the natural human space between the isolated individual and the overwhelming state. This space – created by our cooperative culture and protected by our constitutional law – is where Americans have always been free to come together as equals, to live and to love and to pursue our happiness.

Government’s role – as it pertains to religion and most everything else – is not to direct our interactions within this space, so much as it is to ensure all Americans have equal access to it, and equal opportunity within it. When it comes to religion, specifically, there have been isolated episodes in our history when Americans have fallen short of this standard – including during the early history of my own church. But this has always been the standard, nonetheless.

Thus: the First Amendment’s famous declaration that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Framers’ intention here was not to scrub religion from the public square, but to ensure religion’s equal and enriching access to it.

This meant welcoming people and churches of all faiths – and people of no faith – to form and to follow their religious beliefs without interference or regulation from the state. It meant permitting government officials to promote and encourage an environment where religion can flourish, and even to partner with religious institutions when appropriate. And above all it meant placing all religions on an equal footing before the law: so long as they aren’t threatening the public order, the government must protect the right of individuals and their associations to follow their conscience and the obligations of their faith.

This policy is more than just a matter of compromise or convenience. It is the proper application of human rights and human dignity to the law.

In an essay arguing against a state establishment of religion, James Madison wrote:

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to Him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.

This is how religion has been understood in America – as “precedent, both in order of time and in degree of obligation, to the claims of” the state. It’s why religious liberty has always been given exceptionally robust legal protections against government infringement. And it’s why Americans can be at once so religious and so religiously tolerant. In short, America has gotten religious liberty right – from the beginning – and we are all witnesses to that truth.

We all know – and indeed, many of us are – individuals who have personally benefited from America’s commitment to religious liberty. But those benefits extend far, far beyond individual pilgrims’ progress. Every great social reform movement in American history – from abolition and Civil Rights, to the struggles for women’s equality and labor rights, to the pro-life movement today – has grown out of individual Americans’ religious convictions, and their constitutionally protected right to live them out. All Americans of all faiths – and those of none – have benefited equally from our nation’s unique commitment to religious liberty.

Religious liberty as it has been lived in America is not an accident of history, or a quirk of the law. It is nothing less than a culture-defining human achievement.

Yet recent events suggest it could be losing ground. The great American commitment to religious liberty and diversity may still be universally successful, but it is no longer universally shared. This turn toward intolerance, tragically, has been catalyzed by the campaign for legal recognition of gay marriages.

Like many Americans, I personally do not believe same-sex marriage is a constitutional requirement, or a federal prerogative, or even good policy for that matter. But today, those of us who hold these views cannot deny that our arguments are no longer winning the public debate.

Sometimes in a democracy, the other side wins.

Yet today, at the very moment this campaign appears to be on the brink of success – having appealed to the country with the principles of justice, tolerance, and equality – many within that movement find themselves tempted to abandon the principles and the people that have made them successful.

Most advocates of marriage equality are no more radical than most advocates of traditional marriage – just as most followers of Jesus are no more radical than most followers of Moses, Mohammed, and the Buddha.

But just as radical fundamentalists exist in every religious sect, so too can they be found at the extremes of otherwise healthy political movements. We all know the symptoms of this temptation:

• seeking not tolerance for their own opinions but intolerance toward others’;
• seeking not to persuade dissenters but to punish them;
• seeking not to debate but to demonize.

Every week there seems to be another warning on the horizon, another story more reminiscent of an Orwellian dystopia or theocratic inquisition than the tolerant society all of us know and most of us still believe in.

There is the case of Aaron and Melissa Klein, the husband-and-wife duo who ran a small bakery in Oregon and were recently fined $135,000 for declining to bake a cake for a same-sex wedding ceremony. One hundred thirty-five thousand dollars… and this was after protests and boycotts forced the Kleins to shut down their bakery.

Then there’s Julea Ward – a marriage counselor who was kicked out of her graduate degree program for referring same-sex couples to other counselors who didn’t share her religious convictions about marriage.

And just a few weeks ago there was the ominous exchange between Supreme Court Justice Samuel Alito and U.S. Solicitor General Donald Verrilli during oral arguments in the gay marriage case now before the Court. Answering a question about IRS regulations, Verrilli seemed to suggest that the Obama administration would be comfortable with the notion that the IRS could revoke the tax-exempt status of religious institutions – including schools – that maintain the traditional definition of marriage.

This exchange suddenly raised the possibility that political leaders on the Left – who only recently joined the ranks of the marriage equality movement themselves – do not in fact stand with the tolerant national majority of that movement. Instead, they seem to be tempted by the intolerant impulse to punish Americans who hold the same view President Obama and Secretary Clinton did while running for president a few years ago.

Regardless of how the Court rules in this particular case, it is becoming increasingly clear that the next controversies will not be over whether gay couples should receive marriage licenses, but:

• Whether people who don’t think so may keep their business licenses;
• Whether colleges that don’t think so will be able to keep their accreditation;
• Whether military chaplains who don’t think so will be court-martialed;
• Whether churches who don’t think so will be targeted for reprisal by the state;
• Whether heterodox religious belief itself will be swept from the public square.

But as Father Richard John Neuhaus warned us years ago, “The naked public square cannot remain naked. Politics, like nature, abhors a vacuum. Something is not simply eliminated; it is displaced by something else.” For the secular fundamentalists who believe marriage equality must result in religious in-equality, the “something else” they insert in place of our open, pluralistic society is submission to their secular creed.

The creed is simple: Americans may believe whatever they want; but they may publicly express and act upon only those beliefs the government approves. As ever, to the fundamentalist, “Error has no rights.” And the role of government is to codify in our laws the intolerance that is in their hearts.

We saw the fundamentalist temptation indulged a decade ago in Massachusetts, when Catholic Charities of Boston was forced to stop providing adoption services because they would not – could not – place children in the homes of same-sex couples.

And we have seen it more recently in the case of the Little Sisters of the Poor – a religious order of nuns who provide end-of-life care to the needy, giving them a home where they are treated with love, dignity, and grace in their twilight days. By any measure, the Little Sisters’ devotion to the dignity of human life is nothing short of heroic. But for the past two years the Obama administration has treated them like criminals, relentlessly threatening them with crippling fines that would bankrupt their ministry.

And for what?

For asking the federal government for permission to continue their ministry without being forced to purchase a health insurance policy that provides coverage for contraceptives and abortion-inducing drugs. But the government has repeatedly denied the Little Sisters’ requests, saying they are not religious enough to qualify for an exemption.

Never mind the absurdity of a group of bureaucrats telling nuns they’re not religious enough. What’s most troubling in this case – and a growing number of others like it – is the presumption that a free conscience is not a God-given right, but a government-granted privilege. This is not the posture of a government operating on behalf of a free people, but in service to an official orthodoxy.

You don’t need to subscribe to any particular faith, or hold any particular beliefs about abortion or marriage, to see the danger of a government forcing innocent people to violate their conscience – over a partisan triviality, no less – when they are just trying to make a living, serve their community, or educate the next generation.

The bad news is that some on the Left see in this not danger, but opportunity. The good news is, we can too.

We should never lose sight of the fact that the marriage equality movement is succeeding not by focusing on marriage, but by focusing on equality. Political conservatives and religious traditionalists may not like how the gay marriage debate is going. But it is no small thing that the gay marriage movement has succeeded in recent years only by adopting our principles – of tolerance, diversity, and equal opportunity.

It is those principles – not the parties currently enjoying their political resonance – that hold the high ground in this debate. And because those of us who believe in religious freedom hold those principles in our hearts – and not just in our political quiver – that high ground remains open to us.

The opportunity exists now – and it will expand if the Court rules as most expect it to – for Americans of good-will to come together to reinforce religious liberty, and to further protect and enrich the free space it inhabits.

Soon, it seems likely that America’s public square will fully welcome married, same-sex couples – not as victims or revolutionaries, but simply as equals. Just as America has mostly avoided traditional conflicts between Protestants and Catholics, Christians and Jews, Sunni and Shia, atheists and believers – so too Americans’ commitment to tolerance, diversity, and dignity is perfectly capable of making room for the rights and dignity of those who disagree about the meaning of marriage.

But good-faith compromise – of the sort that is Americans’ unique political genius – is possible only if the government gives us the space to find it. And those tempted by fundamentalism will be loathe to afford us this space, lest they let a manufactured crisis go to waste.

So Americans who believe in religious liberty have two jobs now.

First, we cannot hide this issue under a bushel and hope no one asks us about it. We will have this debate. The only question is whether we start a conversation or we let the fundamentalists pick a fight. The American people need and deserve to have this debate, so their representatives must engage it – with candor and compassion – in the most publicly accountable venues possible.

This is a crucial point for those of us who work in capitals and county seats across the country. If the coming conversation about religious freedom is left to the judicial and executive branches of our government, all Americans – whether they know it or not – will lose that debate before it even begins.

Court rulings and executive regulations tend to be much more one-sided, sweeping, and prescriptive – winner-take-all – and thus should have as little as possible to do with the delicate diversity of 320 million souls’ deepest beliefs. Instead, we must advance the debate in the legislative branches of every government in the United States – at the local, state, and federal levels, because it is in the nature of legislatures to find compromise, to ground policy in real-world interactions, and to respect minority views and rights.

That, for instance, is what the Religious Freedom Restoration Act is, and how it came about, and why – contrary to propaganda claiming otherwise – it has worked so well for two decades.

As President Bill Clinton put it the day he signed the legislation into law, the Religious Freedom Restoration Act protects the “space of freedom between Government and people of faith that otherwise Government might usurp.”

If we want to reinforce religious liberty in America, our first step must be to protect that crucial “space of freedom” from undue government interference. That is the principle behind a bill I will soon introduce in the Senate.

It would protect the tens of thousands of religiously affiliated schools in America – pre-schools through college – from government discrimination. And it would prevent any agency from denying a federal tax exemption, grant, contract, accreditation, license, or certification to an individual or institution based on a belief that marriage is a union between a man and a woman.

Moving forward, the debate will be less and less about marriage and more and more about freedom of conscience. Those of us who value that basic human right have the better of the argument. But that matters only if we have the courage to make that argument at every opportunity, before every audience.

This then is the second – and perhaps more important – task facing the friends of religious liberty today: we must be more than citizens. We must be witnesses – not just to our own understanding of religious truth, but to the universal truth that man is not free unless his conscience is free.

As many in this room know, to live as a witness to such a profound and important fact is to be inspired by – and to inspire in others – the quiet confidence of truth. The way of the witness is not through the halls of influence or the force of intimidation, but through the unassuming power of example.

We all have our own heroes to show us the way. For me and for many Utahns, our path is forever illuminated by the example given to us by the early leaders of The Church of Jesus Christ of Latter-day Saints.

You often hear that the first generation of Mormons were pioneers. And that’s true. But it misses the crucial point: they moved from New York to Ohio to Missouri to Illinois and finally to Utah, not by choice, but by force. Wherever the Mormons lived they were persecuted as heretics and driven from their homes. At each new settlement, they would stay as long as they could until the intermittent abuse grew into an existential threat, and then they would move on.

There were the not-so-random acts of violence, suffered at the hands of the mob, that left entire communities trapped in a state of perpetual anxiety. And then there were the systematic, state-sponsored efforts to destroy the LDS faith itself.

In Missouri, the Governor used his police powers to issue an extermination order against the entire church. Keep in mind: this is not ancient history. This was in 1838. The Governor’s order read, “The Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary, for the public peace.”

But the faithful were undeterred. They continued to push the frontier, not as pioneers, but as pilgrims – in search of their own promised land – and as witnesses to the truth that everyone has an equal and fundamental right to a free conscience.

Shortly after leaving Missouri, Joseph Smith, the church’s founder, delivered a sermon that articulated the spirit of living as a witness.

“If I esteem mankind to be in error,” Smith asked, “shall I bear them down? No,” he declared. “I will lift them up, and in their own way too, if I cannot persuade them my way is better; and I will not seek to compel any man to believe as I do, only by the force of reasoning, for truth will cut its own way.”

Truth will cut its own way.

As witnesses to that truth, in our pursuit of protecting religious liberty, we must proceed with resolve and conviction, and also with cheerfulness and charity.

To truly succeed, we must be gracious, and civil, and solicitous. Not only to preserve our own freedom, but the equal freedom, too, of those who disagree with us, those who are – though we may sometimes be tempted to forget – our brothers and sisters and friends, just the same.

If we can do this, as we have done before, the truth will once again cut its own way, and all of us will be free to follow.

Thank you, and God bless.