Among the most important constitutional moments of 2019 was a speech by U.S. Attorney General William Barr, at Notre Dame last October, where he launched a widely discussed defense of religious liberty.
Barr did not just extoll religion as important to individuals. He made the broader point, echoing the framers, that “religion [is] indispensable to sustaining our free system of government.” In other words, Barr argued that religious liberty is in everybody’s interest.
Barr pointed to the “social pathologies” that have grown in “the new secular age,” including the decline of family life, the increase in “senseless violence” and the spiraling of deaths of despair—suicide, drug overdoses and, he could have added, alcohol poisoning.
Religion performs an important role in social cohesion, along with personal moral formation. With its decline, Barr asserted, “no secular creed has emerged capable of performing” this role. The secularism that has emerged in our society has lacked spiritual and moral foundations. What moral values secularism has, Barr said, are “drawing on the vapor trails of Christianity.”
Barr’s message could have been one that bridged the political gap between religious and non-religious Americans. His support for religious exemptions—allowing believers to avoid requirements of law that violate their conscience—should speak to non-believers also.
Secularists such as myself have warned for years about a coming “crisis in secularism” because of its failure to overcome materialism, relativism and nihilism. Secularism needs to be open to the religious traditions to heal itself and this cannot happen unless American religion itself is flourishing. Religious exemptions are necessary for that flourishing.
It is not surprising that in this hyper-partisan era, Barr’s potentially unifying theme failed to resonate. His speech was praised and denounced in predictable partisan patterns.
But the attorney general was partly himself to blame for the partisan reception of his speech. He couched his message in partisan terms, as an attack on secularists, whom he accused of waging war on religion.
Religion has declined on its own, in a huge movement across the culture. At around the same time that Barr was speaking, the Pew Research Center was reporting that the percentage of Americans identifying as Christians had declined in just the past decade from 77 percent to 65 percent, while the percentage of Americans not affiliated with organized religion had grown from 17 percent to 26 percent.
Movements on that scale have nothing to do with political strategies or court cases.
Barr is actually a part of this secular movement. It is almost comical to hear him point out that in the absence of religion, or some other “effective restraint,” one is left with “the unbridled pursuit of personal appetites at the expense of the common good.”
By that measure, Barr loyally serves the Secularist-in-Chief, President Donald Trump.
Notwithstanding Trump’s support by religious voters, his personal habits in regard to sex and family life are the antithesis of traditional religion. No previous American president has been publicly identified as paying hush money after having adulterous sex with an adult film actress.
Barr is partly responsible for the alienation of secularism from religion in another sense. His notion of religion can be quite narrow and oppressive.
It was only in 2003 — less than 20 years ago — that a narrowly divided U.S. Supreme Court, in Lawrence v. Texas, struck down laws criminalizing consensual homosexual sex.
Barr has always opposed Lawrence and continued to do so in his answers during his confirmation process. If Judeo-Christian values mean that gay people should be put in jail, it is not surprising that many non-religious people have little sympathy for religious exemptions.
Furthermore, Barr’s constitutional case for religious liberty was incoherent. Barr is a self-identified originalist—one who believes that the Constitution should be interpreted in accordance with its original understanding.
But it was Justice Antonin Scalia, not some liberal justice hostile to religion, who wrote the 1990 Smith decision, holding that the free exercise of religion guaranteed in the First Amendment does not require religious exemptions from generally applicable laws. The liberals on the Court dissented in Smith and defended religious exemptions.
Barr argued in his speech that religious organizations—churches, schools—have a constitutional right to participate in generally available government programs. He claimed that churches should be able to demand government money. That position also conflicts with originalism.
It is true that the Supreme Court ruled 7-2 in 2017 in the Trinity Lutheran Church case that a church had a right to a grant from a government playground resurfacing program. But the court did so by giving the Free Exercise Clause a meaning no originalist could defend with a straight face.
The justices did not even try to argue that requiring government to support religious institutions is how free exercise of religion was originally understood.
The Trinity Lutheran Church decision is an example of what is called Living Constitutionalism, not originalism. As the role of government has increased, the burden on religious institutions of not being able to participate in government programs is more pronounced. Therefore, the meaning of free exercise of religion must change.
Barr fails to see that his originalism, which eschews moral reasoning, is a manifestation of a secular society. Originalism was denounced in the 1980’s by the great conservative thinker Harry Jaffa as embodying skepticism about values.
In October, Barr chose to give a divisive speech filled with threats and enemies that would fire up his political base. But there was, in his message, a theme of common ground. All of us, whether we participate in religious institutions or not, are living in a secular age.
Along with the death of God, that age has brought us alternative facts, fake news and the death of truth. We should all be hoping for a renaissance of objectivity and rationality. A renewed respect for religion would be a part of just such a renaissance.
That is the speech the attorney general of the United States should have given. We are still waiting.
Capital-Star Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.