libertyinstitutefaithethics free exercise, liberty, religious liberty, Uncategorized

Barr’s Broadside … Read it All

William Barr is currently serving his second stint as Attorney General of the United States.  On October 11, 2019 he delivered an amazing speech at the Notre Dame School of Law de Nicola Center for Ethics and Culture. His speech was masterful. It is a must read. He skillfully presented the natural law foundation for robust religious liberty and in so doing highlighted the political, philosophical, and anthropological rationales that have protected religious free exercise in the American legal system. 

And he did much, much more. 

He exposed the dangers of secular ethics rooted in sentimentality. He called out “modern secularists [who] dismiss … morality as other-worldly superstition imposed by joy-killing clergy.” And he explained how the Nation’s educational system has become ground zero in a cultural war that, if not thoroughly engaged and confronted, would usher in a controlling and tyrannical government intent of forcing YOU and to accept and even endorse its theology. 

His speech might be renamed or at least subtitled “Why Old Fashioned Religion Matters … It’s Not Just Piety, Baby.” The following extended excerpts gives a taste of his powerhouse presentation. Read it all. 

“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. 

…

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. 

…

I think we all recognize that over the past 50 years religion has been under increasing attack. … 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.

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.

[T]he 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.

…

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.

…

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.

…

[T]he 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.

…

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. 

…

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.”

…

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.  … 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 [the United States Department of Justice] 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. 

…

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.”

libertyinstitutefaithethics Uncategorized

Shame on Maine – Hooray DOJ

The U.S. Department of Justice (DOJ) is standing up for the Constitution. It recently filed a statement in support of three families who have had enough of the State of Maine’s discrimination against them solely because of religion. 

The facts of Carson v. Makin are a shocking testament to the deeply rooted anti-religious malice permeating legal elites, some state legislatures, and many government actors. This time around the tables are turned. First Liberty Institute, one of the real civil liberties organizations on the front line of the religious liberty and human rights litigation, is representing the families. 

These parents of school-age children live in school districts that do not operate their own public high schools. Maine law requires those districts to provide an alternative school program – and one of the ways that is done is by paying the tuition at another district’s public school or at a private school of the parents’ choice. 

Parental choice. Sounds great. But … there’s a catch. Maine, which makes the funds available to any school that meets legitimate academic and other neutral standards, singles out religious schools for discriminatory treatment for only one reason: they are religious schools. That is a clear violation of both the Free Exercise Clause and the Establishment Clause of the First Amendment. 

It’s all here in the complaint filed in the U.S. District Court in Maine. 

Now the DOJ’s Civil Rights Division has joined the case and is now at the forefront of religious liberty advocacy. Its statement of interest in support of the parents pulls no punches. Here’s are some choice excerpts from its brief (internal quotation marks and citations are omitted):

“The State … imposes a penalty on the free exercise of religion: it forces students who are otherwise eligible for the tuition program to choose between participating in the program or remaining enrolled at a religious institution. The State may engage in this religious discrimination against students only if it satisfies the most exacting scrutiny. But the State has failed to identify an interest of the highest order to justify its discrimination, much less to explain how this discrimination is narrowly tailored to achieve that interest. Accordingly, the State’s exclusion of students who attend religious private schools from the generally available tuition program violates the Free Exercise Clause.”

DOJ’s brief nails the bogus argument originally advanced by Maine to justify its blatant religious discrimination; an argument rejected more than once in recent Supreme Court case law, including Zelman v. Simmons-Harris and Locke v. Davey.

“The State’s original justification for banning religious private schools from the tuition program was that including them would violate the Establishment Clause. The State has now wisely abandoned that justification, as it must: as the State acknowledges, under intervening Supreme Court precedent, ‘Maine could design a program that would allow parents to direct public dollars to sectarian schools without violating the Establishment Clause.’ ”

So there was neither need nor legitimate purpose in excluding religious schools from the funding program. 

Then DOJ cited the 2017 landmark case of Trinity Lutheran Church of Columbia, Inc. v. Comer won by the courageous human rights litigation team at Alliance Defending Freedom. It held that generally available public benefits – there a playground-resurfacing grant – may not be withheld from a qualifying school merely because it is religious. 

The brief then takes aim at what is really going on and eviscerates Maine’s pretexual concern about avoiding establishment of religion. That bogus argument harked back to an old line of cases disqualifying “pervasively sectarian” groups from some government funding. But the Court has long repudiated that standard as “disavow[ed],” “offensive,” “regret[table],” “born of bigotry,” and as having a “shameful pedigree.” Mitchell v. Helms.

In fact, Mitchell held that the religious nature of a recipient of a government benefit simply does not matter in honest constitutional analysis. The issue is whether the recipient adequately furthers the government’s secular purpose. When it does, then it has not received any special favor because it is religious. Therefore, as Mitchell noted, it would be “most bizarre that the Court would … reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children.” Ouch! 

The brief is a tour de force of outstanding constitutional analysis. It drives in the final nail with a breathtaking coup de grace that should embarrass the Maine Attorney General and the deeply anti-religious ACLU, each of which is shamefully trying to defend Maine’s state mandated anti-religion animus. Mitchell noted that “opposition to religious school funding acquired prominence in the 1870’s … at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” 

That’s right. Maine is using an old anti-Catholic dog whistle to attack religious education. The New England version of this deep-rooted “hostility to the Catholic Church” is an broader animus toward religion that typically manifests itself as anti-christian. Shame on Maine. Shame, shame, shame. 

The DOJ brief is the result of two recent developments in the Administration of President Donald Trump. First is the President’s May 4, 2017 Executive Order Promoting Free Speech and Religious Liberty. That order produced a memorandum of guidance on October 6, 2017 from then Attorney General Jeff Sessions, which provides the foundation for the DOJ’s historic and welcome decision to intervene and file its brief in Carson v. Makin. See the DOJ June 10, 2019 press release here.

libertyinstitutefaithethics Bioethics, biotech, ethics, free exercise, freedom of speech, religious liberty, technology

L.I.F.E. is Live – Join Us

Life is short, so the saying goes. Here at L.I.F.E. we are going long, as in “for the long haul.” Liberty, life, freedom of conscience, and family structures face unprecedented challenges in the era of technological revolution, expanding government intrusion into daily life, and rapidly evolving social norms. The interface of natural sciences, medicine, and technology offers previously unimaginable vistas. At the same time, those disciplines and others, such as law, ethics, economics, and philosophy open potentials for abuse. 

L.I.F.E. is a new resource, tracking developments related to religious and political liberty, bioethics, and cultural expression. It is no neutral observer. Rather, it proposes a natural law ethic that presupposes and advocates certain first principals: the human person is a creature possessed of free will; societies of persons are the natural state of human persons, beginning with the family based on marriage of one man and one woman, and expanding to local, regional and international political structures; there exist inherent standards of good and evil not contingent on circumstance or intention but of their very nature; each human life is precious, unique and unrepeatable and demands the protection of law from conception to natural death; the free exercise of religion is fundamental to the legitimacy of a given political order; each person is endowed with unalienable rights including freedom of thought, speech, conscience, and religion; and each is obliged to respect the freedom of others and to fulfill the duties inherent to the flourishing of civil society. L.I.F.E. offers a critical assessment of the forces shaping the 21stCentury in light of those first principals. 

L.I.F.E.’s principal organs of commentary, advocacy, and study are the Saint John Paul II Bioethics Center, the Religious Liberty Observatory, and the Center for the Study of Bioethics & Law. 

The annual Saint John Paul II Bioethics Lecture presents academics, jurists, scientists, and others addressing timely topics in bioethics. The 2019 lecture, And Such Were Some of You: Homosexuality and the Bible, features renowned scripture scholar Rev. Sebastian Carnazzo, PhD. And the Center for the Study of Bioethics & Law offers a free university level course: Bioethics & Law 101, with many more in the pipeline.

Please take a stroll through our easy to navigate site. We think you will find in it sources that both delight and challenge.