Academic journal article Brigham Young University Law Review

21st International Law and Religion Symposium Brigham Young University, J. Reuben Clark Law School October 5, 2014

Academic journal article Brigham Young University Law Review

21st International Law and Religion Symposium Brigham Young University, J. Reuben Clark Law School October 5, 2014

Article excerpt

Keynote Address by Senator Orrin G. Hatch

It is my privilege to be with you for the 21st annual International Law and Religion Symposium. I am humbled to be added to the list of distinguished scholars and jurists from around the world who have given this address in the past.

This is an unsettled and unsettling time for religious liberty. Both at home and abroad, religious liberty is under attack. What was once a broad consensus here in the United States that religious freedom deserves special protection has crumbled. Indeed, President Obama and his administration have taken positions that, at best, treat religious liberty as simply an ordinary consideration and, at worst, are openly hostile to religious liberty.

To cite two examples, the administration argued in the Supreme Court that the First Amendment right to the free exercise of religion does not protect a church's decisions to hire or fire its own ministers.1 The administration also claimed authority to force employers to violate deeply held religious beliefs in providing health benefits to employees.2 In both cases, the administration's position would make the fundamental and constitutional right of religious exercise secondary to civil and statutory rights. At the state level, small business owners and non-profits across the country have faced fines, sanctions, and even bankruptcy under public accommodations laws for following their religious convictions.3

Internationally, we see numerous troubling attacks on religious liberty. In Nigeria, Boko Haram continues to attack, maim, and kill Christians in its campaign for an Islamic caliphate.4 In Iran, a man was recently executed for "heresy" after he questioned the interpretation of certain religious texts.5 Pakistan continues to imprison religious dissenters for blasphemy.6 One such dissenter was recently killed by his jailer while awaiting trial.7 The rise of ISIS and other Islamist groups in the Middle East pose significant threats to fragile religious freedoms in that region.8 And nations from Europe to Australia are considering bans on various types of religious clothing.9

In this opportunity to speak with you, I will explain why religious freedom matters, how it is under attack, and what each of us can do to protect this most precious and fundamental freedom.

I. WHY RELIGIOUS FREEDOM MATTERS

First, I want to address what religious freedom is and why it is important. This picture of religious freedom has three parts. First, religious freedom must be both social reality and legal principle. Second, religious freedom encompasses both belief and behavior, exercised in public as well as in private, and both individually and 586 collectively. Third, religious freedom is a fundamental human right that must be given preference.

Professor Thomas Berg of the University of St. Thomas writes that one of "America's greatest contributions to the world" has been establishing religious freedom as both social reality and legal principle.10 This useful formulation is both descriptive of what religious freedom has been in America and prescriptive of what it should be, both here and abroad.

Religious freedom in America was a social reality even before it became legal principle. For nearly two centuries before the founding of the Republic, one religious community after another came here to live their faith. Puritans, Congregationalists, Roman Catholics, Jews, Quakers, Baptists, Presbyterians, and Methodists all found refuge on these shores.11 Professor Michael McConnell has written that in the years before the Revolution, America experienced a higher degree of religious diversity than existed anywhere else in the world.12

Religious freedom was social reality in America not only as a matter of history, but also by design. America's Founders, including George Washington, spoke about religion's role in helping to create good citizens.13 The Massachusetts Constitution of 1780 similarly declared that general happiness, good order, and civil government all depend on "piety, religion, and morality. …

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