The Top Ten Misstatements in Sen. Orrin Hatch’s Recent Defense of Extreme Religious Liberty, Hobby Lobby, and RFRA

When he delivered the Keynote at a religious liberty symposium at BYU earlier this month, Sen. Orrin Hatch was on the defensive–as he should be. He is an original co-sponsor of the Religious Freedom Restoration Act (RFRA) of 1993, its re-enactment in 2000 making it more extreme, and the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. The story line that greased the skids for RFRA, RLUIPA, and the state RFRAs can no longer pass the laugh test. Yet, Hatch persists in misrepresenting the history and law of free exercise. This Top Ten is a list of his misstatements and factual corrections.

  1. According to Hatch, “Both at home and abroad, religious liberty is under attack.” This is a species of half-truth for his purposes, because the attacks most in the news involve radical religious believers, like ISIS or Boko Haram, who justify murder, subjugating children into slave and sex labor, and rape, on religious grounds. They are more attackers than victims, which undermines the rest of his arguments rather significantly.
  2. Hatch took at shot at the President, saying that he “and his administration have taken positions openly hostile to religious liberty.”   Actually, the Obama Administration has taken positions openly hostile to the brand of extreme religious liberty Hatch hatched up with Sen. Ted Kennedy in 1993 in RFRA; discrimination against women; and discrimination generally.
  3. His comments were rife with law office history, as he expounded: “For nearly two centuries before the founding of this 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. . . . America was founded , , , to enable people of all faiths to believe and practice their religion.” In fact, they did not come here for anyone’s religious freedom but their own. To be blunt, but accurate, they escaped oppression to create their own pockets of oppression here. Puritans killed “witches,” a.k.a. dissenters, Baptists, and Quakers in Massachusetts for having the wrong faith. Quakers in Pennsylvania excluded anyone from serving in public office unless they shared the same faith. Establishments were common: Catholics established their religion in Maryland, while others imposed their religion where they could. Every state had and enforced anti-heresy and anti-blasphemy laws. Indeed, those laws were grandfathered in by the First Amendment when it was limited to the federal government. The United States did not start with religious freedom for all, but rather evolved into it as religious diversity proliferated and the innovation of separation of church and state worked itself out through history.
  4. “The first right named in the Bill of Rights is the freedom of religion,” which he says later makes it a “special and preferred value.” Not really. It was a historical accident that freedom of speech and religion were first in the list, not because the Framers valued freedom of religion more than the right against government search and seizure in the Fourth Amendment. Congress originally sent twelve amendments to the states for ratification. Only after the first two were rejected did the third become first.
  5. Hatch endorsed the wonders of Religious Freedom Day, as though it is a reflection of the history of early tolerance and diversity he falsely paints.  In fact, Religious Freedom Day was initiated in 1996 by Pres. William Jefferson Clinton, the friendliest and most foolish President for religion since President Grant tried to “Christianize the Indians.” Clinton signed both the RFRA of 1993, RLUIPA, and the RFRA of 2000, apparently not understanding each time that he was ushering in extreme religious liberty, not the Constitution’s standard. He also granted one favor to religious lobbyists after another, as I documented here.
  6. Hatch further stated “while nearly 90 percent of Americans say that religion is important in their personal lives, three-quarters believe religion is losing its influence in our society, the highest level in nearly 60 years.” Correction: it is not that Americans have abandoned “religion,” but rather organized or traditional religion. One-fifth of Americans, and one-third of Americans under thirty are religiously unaffiliated, and their numbers are growing. Warning to Senator Hatch: Nearly four in ten Americans think politicians talk too much about their religion.
  7. Back to misstating history: “America’s Founders viewed the Establishment Clause narrowly and the Free Exercise Clause broadly, a combination that allowed for robust religious freedom and an active role for religion in public life.” This is propaganda. The Founders and their generation understood that there can be too much liberty and even had a name for it: “licentiousness.” They also believed that believers should abide by the rule of law, and that peace, safety, and security should routinely trump the actions of religious actors. This latter point was reflected in the state constitutions that predated the federal Constitution.   And, show me one iota of evidence that there is not “an active role for religion in public life” today.   If he means that there is social stigma if one endorses discrimination against same-sex couples or opposes women’s reproductive liberty, that is simply not the same thing as being silenced. You can’t advocate religious “liberty” as you express your religious views loudly and then complain when others express their religious (and non-religious) view that your religious values are morally ugly. You have the right to speak and they have the right to speak in turn.
  8. Hatch also trotted out the now tired canard about how RFRA supposedly reflected the Supreme Court’s prior constitutional doctrine, and how Employment Div. v. Smith supposedly “narrowed” free exercise doctrine. It is simply untrue from beginning to end, as the Supreme Court has now said in Smith, Boerne v. Flores, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, and Burwell v. Hobby Lobby. I suggest that Hatch (or his staff) read the briefs and the decision in Church of Lukumi Babalu Aye v. City of Hialeah. The church argued for the super-strict standard RFRA sets (government bears the burden of proving both compelling interest and that it is served by the “least restrictive means”) and the Court declined—five months before Clinton signed RFRA in 1993. Smith didn’t “narrow” the doctrine, but affirmed it, and anyone who persists in believing it did has not read closely enough the prior cases, or any of the Court’s succeeding free exercise cases. I can save them the trouble. In a nutshell: neutral and generally applicable laws have not been subjected to strict scrutiny, except in one case (Wisconsin v. Yoder) and laws that treat religious and secular reasons differently have been subjected to ordinary strict scrutiny with no “least restrictive means” requirement. RFRA makes a double switch—increasing both categories of cases to super-strict scrutiny. If that is hard to follow, how about this: Never has the “least restrictive means” test been applied by the Supreme Court in a single free exercise case. Not once.  That element alone makes RFRA patently unreasonable and extreme.
  9. In a laughable moment, Hatch said that he has “[rarely] . . . seen a bill that was clearer or simpler than the Religious Freedom Restoration Act.”   Then he excoriates “many of the very Senators and Congressmen who supported RFRA [who] are now pushing legislation that would render it impotent.” In fact, RFRA is the black box of legislation, written in constitutional legalese, with no indication which laws it would undermine, or which believers would likely invoke it to skirt the law.   Its opacity was one of its worst features and the very reason that earlier support was ephemeral.
  10. Most egregious for a co-sponsor was that Hatch perpetuated the propaganda about RFRA’s enactment, stating that RFRA “passed the House of Representatives unanimously.” Not quite: it passed via “unanimous consent,” with no quorum and no roll call vote. He also emphasized how it had broad bipartisan support, and then complained about how that broad support fell apart, as though it was due to religious animus. In fact, the broad support fell apart once the bipartisan supporters understood that it was (1) intended to be a tool for discrimination and (2) a means of denying women contraceptive coverage. [See (9) above.] Neither of those goals was on the table or apparent when first introduced or enacted in 1993.He also acknowledged that RFRA was held unconstitutional, but then conspicuously omitted the full history of its fraught re-enactment in 2000.   At that point, a new, full-blown RFRA was out of the question for political and constitutional reasons. Instead,  Congress considered a scaled- down RFRA, which applied solely to federal law, and RLUIPA, to apply to state and local land use and prison regulations.   He asserted that RLUIPA “unanimously passed.” In truth, its proponents could not muster the votes to get it passed at all when Congress was in session (it died in the Senate). But where there is a will there is a way: knowing they could not get RLUIPA and the RFRA of 2000 passed through ordinary processes, as soon as the summer recess was called on July 27, 2000, there was a secretive vote via “unanimous consent” in both houses: with most members (certainly all opponents) gone for the summer recess, no quorum, and no roll call vote.   That’s right, far from passing “unanimously,” RFRA’s and RLUIPA’s passage in 2000 was classic Washington dirty tricks.[1]

In short, if Senator Hatch intends to defend the extreme religious liberty in the federal (and state RFRAs), he is going to have to do better than he did at BYU this month.

[1] He also fudged the legislative history behind the International Religious Freedom Act, saying that “Congress unanimously passed” it as well. Wrong again. It passed the House 375-41, then passed the Senate 98-0, with significant changes. When it was sent back to the House, it was approved by voice vote (which does not require a quorum or a roll call).

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.