Thank you Andy for that kind introduction, for your 18 years of service to the Department of Justice and for your leadership as United States Attorney. I think that you’ll agree with me that it’s the best job in the world.
It is great to be back in Boston, the Cradle of Liberty and the Hub of the Universe. Thank you all for being here. I know you’re probably tired from watching the World Series. I want to thank the Boston Lawyers Chapter of the Federalist Society for inviting me to be here with all of you today, especially Michael Sullivan—former U.S. Attorney and former Acting Director of the ATF, and Jordan Lorence of ADF. I have admired and appreciated the Federalist Society’s mission from its beginning in 1982. I was a young, United States Attorney under Ronald Reagan then. And I cheered its courage in challenging activist orthodoxy—with not much expectation of any real change, frankly. But I was wrong. I cannot name any other group over the last 35 years that has come close to the policy achievements of the Federalist Society in their area of emphasis.
The jurisprudence of the “neutral umpire” is on the ascendancy and activism and ideology are on the defensive intellectually. A stunning reversal. And indeed, thanks to President Donald Trump, there are two more Federalist Society members sitting on the Supreme Court.
It is an honor to be here with you in this historic building, the Parker House. It has hosted figures like Thoreau, Emerson, Hawthorne, Longfellow, Oliver Wendell Holmes, and John F. Kennedy. And it’s where the Boston cream pie was invented. But perhaps more relevant to our discussion, Boston is where John Adams defended British soldiers in a jury trial before the American Revolution. That tells us something very important about how law develops.
That we are heirs to such a legal system, that has protected our safety, our prosperity and liberty for so long, should fill us with awe and energize our determination to preserve, protect and enhance it. Every generation is honor bound to defend our magnificent rule of law. On the 150th anniversary of the Declaration of Independence, the President of the United States—a former Massachusetts Governor named Calvin Coolidge—asserted: “[T]he American Revolution represented the informed and mature convictions of a great mass of independent, liberty-loving, God-fearing people who knew their rights, and possessed the courage to dare to maintain them.”
President Coolidge argued that the revolution began in the pulpits. In particular, he cited the preachers Thomas Hooker of Connecticut and John Wise of Massachusetts. Generations—even a century—before the Revolution, they preached that all men are created equal: they are equals before the state because they are equals before God. And if men are equal then no man has the right to rule another without his consent. That is why one Boston lawyer named John Adams wrote in his old age, “The War…was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected before a drop of blood was drawn at Lexington.” The American ideas of self-government, equality, and liberty were in the air—and they were in the air in large part because of theological traditions that were planted, took root, and blossomed in colonial America.
Given the colonial experience in fleeing religious persecution, the centrality of religion in promoting the ideas embodied in the Constitution, and the belief that public virtue was critical to the American experiment, it is no wonder that the Founders took care to enact robust and strong protections for religious liberty in this country. And so it is fitting that we gather here today to talk about religious freedom in this country. And it could not come at a more important time.
We are all still reeling from the murderous rampage in Pittsburgh that took the life of 11 congregants targeted because of their faith—worshiping faithfully in their own synagogue. This was not just an attack on the Jewish faith. It was attack on all people of faith. And it was an attack on America’s values of protecting those of faith. It cannot—it will not—be tolerated.
So today, I want to talk some about the current condition of religious expression in America and what we at DOJ are doing about it. The Constitution contains several protections for religion: Article VI guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The First Amendment guarantees the free exercise of religion, bans laws respecting an establishment of religion, and secures the freedom of speech so that citizens can always speak their faith.
But, respect for religious liberty and for people of faith has eroded significantly in recent decades. Some people argue not only that government must not endorse particular religious views, but that religion must be banished from the public square entirely. Challenges to the “free exercise” of religious faith have become acute. In recent years, we’ve seen nuns ordered to pay for contraceptives. We’ve seen a United States Senator interrogate a judicial nominee about her religious “dogma,” even though, as noted, the Constitution explicitly forbids a religious test for public office. We’ve witnessed the ordeal—still ongoing—faced so bravely by a Colorado baker who simply doesn’t want the government to force him to create art that offends his religious beliefs. We’ve seen a state tell a religious organization that it cannot receive the same funding for playgrounds that everyone else receives simply because it is religious. We’ve seen a federal district court strike down a 65-year-old tax exemption for clergy housing because it reasoned that not forcing religion to pay the government somehow means the government is establishing religion. We’ve seen groups that defend religious freedom—including a certain organization that is undefeated at the Supreme Court—labeled as “hate groups.”
These are deeply troubling incidents that should concern anyone—religious or otherwise—who cares about our Constitution. Those pushing this worldview overlook the fundamental fact that the framers understood: A constitutional republic can only survive if its citizens are committed to a shared set of principles—most importantly the principle that all people are created equal—and religion is a key foundation for those virtues. While no government should ever require anyone to abide by a particular creed, a free government must vigilantly protect the rights of its citizens to exercise, and educate, others in their faith. Madison and Jefferson’s ideas were clear and carried the day: The relationship of an American with his or her God transcends civil authority and the government cannot even “take cognizance” of it.
That is why the Department of Justice is taking action to defend religious liberty. Shortly after he took office, the President directed me to issue legal guidance to ensure that all executive agencies would faithfully apply the federal laws that protect religious liberty. Our team embraced that challenge. I issued that guidance one year ago Friday. It lays out 20 fundamental principles that the Constitution and federal statutes require of the Executive Branch. Those include the principle that free exercise means a right to reasonably act, not just meditate in secret. Faith constantly demands action.
The guidance tells the Executive Branch how to follow the Religious Freedom Restoration Act, or RFRA. A few years ago, that would not have been controversial. But now it is. RFRA was originally supported by the ACLU, Chuck Schumer, Joe Biden, John Kerry, Harry Reid, Chris Dodd, and Ted Kennedy—hardly Federalist Society members. It passed 97 to 3 in the Senate before it was signed into law by President Clinton. It doesn’t get much more bipartisan than that. As we approach the 25th anniversary of RFRA next month, many of its original supporters, including the ACLU, have denounced this important law. They argue that the federal government should not protect a citizen’s right to freely exercise his or her religion if that exercise offends or inconveniences others. That simply provides an objector’s veto. That is not freedom. Clearly, Americans are free to exercise their religious convictions openly, in speech and action, within reasonable limits. So, we are concerned.
Under President Donald Trump, the Department of Justice is going to court across America to defend the rights of people of faith, including under RFRA. And, we are aggressively and appropriately enforcing our civil rights laws, our hate crimes laws, and laws protecting churches and faith groups. Let me give you a report. Since January 2017, we have obtained 14 indictments and 10 convictions in cases involving arson or other attacks or threats against houses of worship and against individuals because of their religion. Over the last 12 months, the Department has obtained 30 hate crime convictions, and since January 2017, has indicted 50 more such defendants. And this weekend, we added once again to this list. We charged Robert Bowers with 29 federal counts for the heinous murders at the Tree of Life Congregation.
We have also used civil litigation and statements of interest to protect the rights of the American people. In January, we filed a brief in a Montana court to defend parents who claim that the state barred their children from a private school scholarship program because they attend a religious school. We got involved in a lawsuit filed by Alliance Defending Freedom against Georgia Gwinnett College, a taxpayer-funded school that punished a student for sharing his faith outside of a designated “free speech zone.” In this case, the free speech zone was just 0.0015 percent of campus — and even inside the free speech zone, you need permission. Give me a break. We also filed an amicus brief on behalf of the Archdiocese of Washington, D.C., which was refused advertising space for having a religious message. And, we were argued in support of the Colorado baker, Jack Phillips.
Over the past year we have taken new steps to be even more effective in defending these rights. In June, I announced the Place to Worship Initiative. Under this initiative, the Department of Justice is holding public events across America and improving training for federal prosecutors about legal protections for houses of worship. When I was in the Senate, we passed a law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA, under which the Department of Justice can file a civil action in court when religious groups are discriminated against in zoning laws. It’s a bigger problem than you might think. During my tenure as Attorney General, we have filed five amicus briefs in RLUIPA cases, including one regarding a Catholic church and one regarding a Hindu temple, we have sued on behalf of an Orthodox Jewish congregation in New Jersey, and settled four cases involving mosques. The head of our Civil Rights Division is going to court on Wednesday to defend an evangelical church in Maryland. In July, I announced our Religious Liberty Task Force, to ensure our legal guidance document is being properly enforced.
Today, I am announcing our next step. As many of you know, last year, the Supreme Court decided a case called Trinity Lutheran, in which it held that a state policy denying grant money to any applicant owned or controlled by a religious entity violated the free exercise clause of the First Amendment. The Court declared that a state may not expressly discriminate against otherwise eligible religious entities by disqualifying them from a public benefit solely because of their religious character. This is a significant ruling. Today I am ordering the Religious Liberty to Task Force to examine—in light of the Supreme Court’s ruling— whether there are other instances in which this kind of discrimination is occurring at the federal level. If so, it must, and will, stop.
We are going to keep going to court. We are going to keep winning. I say that because we are winning and because our superb legal team carefully reviews each case we take to ensure it is legally sound. But let me just say this: religious freedom is not absolute—no one argues that. There is no right to do wrong and there is no right to deprive others of their rights. There is no right to demand that the state advance one’s religious beliefs over others. But that’s not what we’re talking about. Thomas Jefferson famously scoffed that “it neither picks my pocket nor breaks my leg” if someone else has the wrong religion. Certain people seem to have forgotten that. That is why, in the short-term, winning in court is necessary.
But, we also need a recovery of respect for one another. I well remember that my father once corrected me, saying, “Never make fun of someone’s religion.” He was entirely serious about it. It was good advice. He explained that religion was very important to people, and to criticize their faith was to attack them as a person. But today many people are getting a different message from the culture. They are being told to wage total cultural war. Not everything needs to be decided in court. We don’t have to get offended over everything. Maybe what we need is not more litigation but more tolerance, or simple patience, for others. And so, no matter what your creed may be, we all would do well to recover that mutual respect and a certain humility about our own righteousness. As we work toward that good and lawful goal, a goal President Donald Trump gave to us, we are going to continue to uphold the Founders’ respect for religious liberty—and we will keep defending the rights of the American people. We will never fail to protect the American right—to freely exercise their faith. We will steadfastly defend those rights with all our skill and determination. We will not acquiesce in the diminishment of this heritage. We ask for your support in this work.
