U.S. Attorney General Bill Barr has made headlines in recent months. Most notably he gave a talk at Notre Dame Law School regarding religious freedom. This drew sharp criticism from the media and several mainstream figures. Attorney General Barr is an inspiring modern-day Constitutionalist and should be lauded for the great work and courage he has showed during his tenure as Attorney General.
Attorney General Barr gave an inspiring talk at Notre Dame that focused on the troubling decay of the American society as it moves away from the Judeo-Christian principles upon which it was founded upon. Several of these points were emphasized in his published St. John’s Law Review (formerly The Catholic Lawyer) piece from 1995 titled, “Legal Issues in a New Political Order”.
He noted in the Founding Era that the framers clearly established an intent for religion to act as an effective moral force within the citizens of the nation to maintain a free and just government. It created a sense of moral virtue and self-discipline. Barr discussed John Adams’ view that Constitution was made for people of this inclination and how they would serve as the bedrock of a successful society. Their behavior would contribute to the common good unlike an excessive and unrestrained individual appetite that could draw conflict with other aspects of society. When individuals exercise good moral virtue, they are exercising power separate from their own wills that too often could lead to poor decisions and rather maintain a focus on a transcendent moral authority that will hold them accountable.
Barr than progressed into a discussion on the importance of natural law considerations and how God’s eternal law flows to the natural law which in turn provides a just society with an outline for moral guidance. It provides a sense of conscience considerations and the ability to weigh right and wrong. It forms a healthy moral compass for the citizens of a just society. With the rise of the secular movement and moral relativism in society, this compass is distorted within the citizenry when the concept of faith is relentlessly attacked. He discussed the detrimental consequences this has on society and cited examples such as family wreckage and instability, dispirited young people, more depression, rising number of suicides, increased drug use and the acceptance of abortion as a remedy for sexual decision making. It is not a coincidence these rises have occurred as religions has been further driven from the public square. The tools to achieve this end commonly arise in pop culture, the entertainment industry and academia. These entities strongly articulate their position, but resist any form of opposition and challenge. In many cases, stifling dissent or ridiculing it to such a degree with mischaracterizations to drive the contrasting viewpoints further from the mainstream.
He concluded with acknowledging the major impact of law on this discourse and current examples where religion was or is currently in the crosshairs. The goal is to destroy traditional values and he rightfully noted the major battlegrounds are in the realm of education and public schools. The courts and legislatures have become vehicles to shape this decay with blatantly unconstitutional decisions or unjust laws passed aimed at targeting religion and its influence in society.
He cited a few recent examples where religion has clearly come under assault. First, curriculum standards that some states have implemented include controversial and contentious social issues without any provisions for parental opt out. This is interfering with the parental right in educating their children. For example, he cited New Jersey, California and Illinois laws that have adopted an LGBT curriculum without an opt out provision for parents concerned about how the issues are presented on such a controversial topic.
Next, he focused on general religious expression and most recently a Montana case where a tax program existed where citizens would receive a credit for donating to a scholarship program for low-income students to attend private schools, but not religious schools. Montana heavily relied on its own Blaine Amendment which is modeled after a failed proposed U.S. Constitutional Amendment that would have banned state funding to religious institutions. Barr explained that the Department of Justice recently filed an amicus brief with the Supreme Court on this case and argued the Montana law is unconstitutional.
Finally, he challenged laws that would force religious schools to adhere to secular orthodoxy such as allowing lawsuits against Catholic schools who did not want to employ individuals that were in a same-sex marriage. This lifestyle example undermines a material Catholic position and teaching on the definition of marriage. Barr explained that lawsuits of this nature infringe on the Diocese’s expression association rights and attack the autonomy of churches. The Department of Justice filed a statement of interest in an Indiana case related to these lawsuits.
Patricia Hackett’s Challenge
Attorney General Barr’s remarks, however, did not go unchallenged. An adjunct law professor from Notre Dame and Democrat Congressional candidate, Patricia Hackett, disagreed with the Attorney General’s perspective on religious freedom and history. It was, however, more of a political commentary and less routed in substantive discourse.
Ms. Hackett accused Attorney General Barr of “empowering certain religious institutions over the religious freedom and conscience of all Americans, whether religious or non-religious.” Ms. Hackett fails to realize that the Free Exercise Clause and Establishment Clause provide protections for freedom of religion in a just society, not freedom from religion. The common atheist entities that look to the Establishment Clause for “protection” in several cases do not have a firm Constitutional basis in line with the original intent to bring these actions. As discussed in prior posts, the mid-twentieth – to late twentieth century Supreme Court radically departed from the original intent and correct interpretation of the Establishment Clause. The core meaning of the Establishment Clause is to protect against having a state-run religion that is hostile and intolerant to other faiths and dominates society in a theocratic matter from its position of power. This is what had occurred in England with the Church of England and its oppression on various other sects of faith. The key is compulsion into a single state -run religion, not eradicating any hint of religious representation from government entities or tradition for example a Nativity Cresh on town property or a Menorah during the holiday season. There are also other examples with public schools having major religious holiday vacation days for students or having a non-denominational prayer to open a municipality meeting.
Ms. Hackett’s commentary alleging the first three presidents were deists, rather than organized Christians also is very controversial and not entirely supported by historical record. Take for example, George Washington, who historians have recognized as being active in the Anglican Church in addition to attending services of other denominations. He recognized the importance of established religion and the rights of congregants to practice their faith. If we, however, do concede Ms. Hackett’s point it still does not change that the intent of the framers was to incorporate protection for religious beliefs and institutions within the Constitution. As evidenced in its place in the First Amendment, this was clearly an issue that was prioritized.
The right to not worship is not provided in the Constitution rather it is a conscience choice that an individual makes to be removed from the religious realm, however, when understanding the context of Establishment Clause this does not mean that one must be compelled into practicing religion or else be punished. This would not be protected under the Constitution. In addition, the Constitution does not specify what religions are protected, just religion in of itself. Outside of the “Judeo-Christian Orthodoxy” there are several other forms of religion that would be entitled to the same rights such as Islam and Hinduism. It is not unreasonable to consider that Attorney General Barr would likely also commandeer the Department of Justice to look into a matter involving a Muslim baker that is facing destruction of his or her business on account of their closely held religious beliefs. Ms. Hackett’s unsubstantiated and broad-based attacks on the Attorney General highlight a lack of a firm understanding of law and religion constitutional interpretation.
Her commentary further soils with political undertones when she accuses him of “dismissing certain outcomes of the rule of law, such as for example, marriage equality, which is the result of reason, evidence and science applied within the courts throughout this nation.” This is a very controversial issue and Ms. Hackett does not show much humbleness or respect for opposing views on the issue such as its constitutionality as a matter of U.S. Constitutional law. Several states had differing views on this issue and 5 Supreme Court justices took one side of the debate. This is far from a unanimous standard and insults those who used reason to reach an opposing outcome. She also fails to elaborate on her evidence and scientific standard that she claims supports her view.
Overall, there were many weaknesses in Ms. Hackett’s rebuttal commentary of Attorney General Barr. As Americans, however, we should appreciate the work of Attorney General Barr as he continues to inspire us with his defense of law and religion issues that are being drawn into the forefront of society and will continue for years to come.
 William P. Barr (1995) “Legal Issues in a New Political Order,” The Catholic Lawyer: Vol. 36: No. 1. Article 2.