William Barr

Address on Religious Liberty to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame

delivered 11 October 2019, South Bend, Indiana

[AUTHENTICITY CERTIFIED: Text version below transcribed directly from audio]

Thank you very much. Thanks, Tom, for your kind introduction. Bill and -- and Roger, it's good to -- to be with you also.

Your Honors, Your Excellency, friends from the Notre Dame Community -- I do feel a special connection with Notre Dame. I did have -- one of my uncles went to Notre Dame, and my youngest daughter Meg/Margaret went to Notre Dame. Two of my nephews went to Notre Dame. In fact, their father and my brother Stevie/Stephen Barr is here and is at Notre Dame, I think for a semester, right Steve? He's the smart one in the family. He's a theoretical particle physicist, and he writes a lot about the relationship between science and -- and physics. So I'm glad to get to see him. I don't get to see him that often. 

I'd like to thank you to the Notre Dame Law School and the de Nicola Center for Ethics and Culture for graciously extending this invitation to speak to you. And I'm looking forward after this speech to answering questions.

I'd like to thank Tony de Nicola, whose generous support has shaped, and continues to shape, countless minds through examination of Catholic moral -- of the Catholic moral and intellectual tradition.

When my daughter, Meg, after she -- after she graduated and ultimately went to law school, she became very ill for a period of time. And I knew there were great kids at Notre Dame, people of great character, and for a long period of time there was always one of her classmates visiting us. They worked it out so there was always someone coming to -- to visit us while she was being treated in the hospital and so forth. And we got very close to all her friends and we love them to death. And Notre Dame will always have a special place in my heart because of that. I have five grandchildren now with another on the way, and I'd be very proud if they all end up at Notre Dame.

Meg, incidentally, recovered and got married recently. She got married on December 8th, the Feast of the Immaculate Conception. And the day before I got a call from the President, who was walking out to the helicopters and he said,

"Bill, I know we talked about putting the announcement off until after your daughter's wedding, but I'd sort of like to do it today if it's okay with you. But...it's totally up to you."

And I said,

"Well, Mr. President, we talked about it and whatever suits you, you know, we'll adjust to. That will be fine."

And he said,

"Okay, well, I'll do it now, while I'm walking out to the helicopters."

So, I turn on the -- I was, you know, lounging around in -- in my study at home and I turned on the television, and it was sort of the first of a number of out-of-body experiences I've had since then -- 'cause he walks over and he goes, "I'm selecting Bill Barr to be Attorney General of the United States."¹

And that was the day before -- that was Pearl Harbor day, December 7th, and the next day was my daughter's wedding. And she said to me, "Pop, you're the only guy I know who would upstage his daughter at his own -- at her own, at her wedding." But I -- But when I gave the toast I said, you know, "Meg...it's...okay because just as the Barr name is going to be dragged through the mud you're changing your name to McGahey [ph].

Today, I would like to -- to share some thoughts with you about religious liberty in America. It's an important priority in this Administration and for this Department of Justice.

We've set up a task force within the Department and which all the various components have equities in this area -- the Solicitor General's Office, the Civil Division, the Office of Legal Counsel, and other offices are all represented. And we have regular meetings and we keep an eye out for cases or events around the country where -- where states are misapplying the Establishment Clause in a way that discriminates against people of faith, or cases where -- where states adopt laws that impinge upon the free exercise of religion.

From the Founding Era onward, there was strong consensus about the centrality of religious liberty in the United States. 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. In his renowned 1785 pamphlet, "Memorial and Remonstrance Against Religious Assessments," James Madison described religious liberty as "a right towards men" but "a duty towards the Creator," and a "duty….precedent both in order of time and degree of obligation, to the claims of Civil Society."

It has been over 230 years since that small group of colonial lawyers led a revolution and launched what they viewed as a great experiment, establishing a society fundamentally different than anything that had come before. They crafted a magnificent charter of freedom -- the United States Constitution -- which provides for limited government, while leaving "the People" broadly at liberty to pursue their lives both as individuals and through their free associations. This quantum leap in liberty has been the mainspring of unprecedented human progress, not only for Americans, but for people around the world.

In the 20th century, our form of free society faced a severe test. There's always been the question whether a democracy so solicitous of individual freedom could stand up against the regimented, totalitarian state. That question was answered with a resounding "yes" as the United States stood up against and defeated, first fascism, and then communism.

But in the 21st century, we face an entirely different kind of challenge. The challenge we face is precisely what the Founding Fathers foresaw would be the supreme test of a free society. They never thought that the main danger to the Republic would come from external foes. The central question was whether, over the long haul, we the People could handle freedom. The question was whether the citizens in such a free society could maintain the moral discipline and virtue necessary for the survival of free institutions.

By and large, the Founding generation's view of human nature was drawn from the classical Christian tradition. These practical statesmen understood that individuals, while having the potential for great good, also had the capacity for great evil. 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 of restraining individual rapacity. But, if you rely on the coercive power of the government to impose those restraints, the Framers believed, this will inevitably lead to a government that is too controlling, and you would end up with no liberty, just tyranny.

On the other hand, unless you had some effective restraint, you end up with something equally dangerous -- licentiousness, the unbridled pursuit of personal appetites at the expense of the common good. This is just another form of tyranny -- where the individual is enslaved by his appetites, and the possibility of any healthy community life crumbles.

Edmund Burke summed up this point in his typically colorful language:

Men are qualified for civil liberty in exact proportion to their disposition to put [moral] chains upon their own appetites.... Society cannot exist, unless a controlling power [upon will and appetite] be placed somewhere; and the less of it there is within, the more [[of it]] there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.²

So the Founders decided to take a gamble. And they called it a great experiment. They would leave "the People" broad liberty. They would limit the coercive power of the government, and they would place their trust in the self-discipline and virtue of the American people. In the words of Madison, "We have staked our future on the ability of each of us to govern ourselves...."³ And this is really what they meant by "self-government." It did not mean primarily the mechanics by which we select a representative legislature. It referred to the capacity of each individual to restrain and govern themselves.

But what was the source of this internal controlling power? In a free republic, those restraints could not be handed down from above by philosopher kings. Instead, social order must flow up from the people themselves -- freely obeying the dictates of inwardly-possessed and commonly-shared moral values. And to control willful human beings, with an infinite capacity to rationalize, those moral values must rest on authority independent of men's wills -- they must flow from the transcendent Supreme Being.

In short, the Framers' -- in the Framers' view, free government was only suitable and sustainable for a religious people -- a people who recognized that there was a transcendent moral order antecedent to both the state and to man-made laws and had the discipline to control themselves according to those enduring principles. As James -- As John Adams put it,

We have no Government armed with [[the]] Power [[which is]] capable of contending with human Passions unbridled by morality and Religion....Our Constitution was made only for a moral and religious People. It is wholly inadequate [to] the government of any other.⁴

And As Father John Courtney Murray observed, the American tenet was not that "free government is inevitable, only that it is possible, and that its possibility can be realized only when the people as a whole are inwardly governed by the recognized imperatives of the universal moral [law]."⁵

Well, how does religion promote moral discipline and -- and the virtue needed to sustain free government?

Well, first, it -- it gives us rules to live by. The Founding generation were Christians, and they believed that the Judeo-Christian moral system corresponds to the true nature of man. And those rules speak to man and fulfill man both in his private spiritual life and in his communal life. Those moral precepts start of course in Christianity with the two great commandments -- to Love God with your whole heart, soul, and mind; and to Love Thy Neighbor as Thyself.

But they also include the guidance of natural law -- a real, transcendent moral order which flows from God's eternal law -- the divine wisdom by which the whole of creation is ordered. The eternal law is impressed upon, and reflected in, all created things, and from the nature of things we can, through reason and experience, discern standards of right and wrong that exist independent of human will.

Now, modern secularists dismiss this idea of morality as sort of other-worldly superstition imposed by a killjoy clergy. But, in fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct. They reflect the rules that are best for man, not in the by-and-by, but in the here and now. They're like God's instruction manual for the best running of man, and the best operation of human society. And by the same token, violations of these moral laws have bad real-world consequences for man and for society. We may not pay the price immediately, but over time the harm is real.

Religion also helps promote moral discipline within society. We're all fallen. We don't automatically conform our conduct to moral rules, even -- even when we know that they are good for us. But religion helps teach, train, and habituate people to want what is good. It does not do this primarily by formal laws -- that is, by coercive power. It does this through moral education and, by framing society's informal rules, the customs and traditions which reflect the wisdom and experience of the ages. In other words, religion helps frame a moral culture within society that instills and reinforces moral discipline.

I think we all recognize -- well -- that over the past 50 years, religion has been under increasing attack. On the one hand, we have seen the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square. On the other hand, 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.

Virtually every measure of social pathology continues to gain ground.

In 1965, the illegitimacy rate was 8%. The last time I was Attorney General, in 1992, it was at 25%. Today, it is at over 40%. And that's the national average. In many of our large urban areas, as we know, it is well over 70%.

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 know, over 70,000 people die a year from drug overdoses. That is more casualties in a year than we experienced during the entire Vietnam War.

I won't dwell on the bitter results of the new secular age. Suffice it to say that the campaign to destroy the traditional moral order has coincided, and I believe has brought with it, immense suffering and misery. And yet the forces of secularism, ignoring these tragic results, press on with even greater militancy.

Among the militant secularists are many so-called progressives, but where is the progress? We are told we are living in a "post-Christian" era. But what has replaced the Judeo-Christian moral system? What is it that can fill the spiritual void in the hearts of the individual person, and what is the system of values that can sustain human social life?

The fact is that no secular creed has emerged capable of performing the role of religion. Scholarship suggests that religion has been integral to the development and thriving of homo sapiens since we emerged roughly 50,000 years ago. And it is just for the past few hundred years that we've embarked on this experiment of living without religion.

We hear much today about our humane values. But in the final analysis, what undergirds these values? What commands are adherence to them? What we call "values" today is really nothing more than mere sentimentality, still drawing on the vapor trails of Christianity.

Now, there have been times and places where the traditional moral order has been shaken in the past. In the past, societies, like the human body, seem to have a self-healing mechanism, a self-correcting mechanism that gets things back on course if things go too far. The consequences of moral chaos become too pressing, the opinion of decent people rebels, they coalesce and rally against obvious excess. Periods of moral retrenchment follow periods of excess. This is the idea of the pendulum, and we've all thought to ourselves, "after a while, the pendulum will swing back."

But today, we face something different that may mean that we cannot count on the pendulum swinging back. First, is the force, fervor, and comprehensiveness of the assault on organized religion we are experiencing today. This is not decay. This is organized destruction. Secularists and their allies have marshaled all the forces of mass communication, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values. These instruments are used not only to affirmatively promote secular orthodoxy, but also to drown out and silence opposing voices, and to attack viciously, and hold up to ridicule, any dissidents.

One of the ironies, as some have observed, is that the secular project has itself become a religion, pursued with religious fervor. It is taking on all the trappings of religion, including inquisitions and excommunication. Those who defy the creed risk a figurative burning at the stake -- social, educational, and professional ostracism, and exclusion waged through lawsuits and savage social media campaigns.

The pervasiveness and the power of our high-tech popular culture fuels apostasy in other ways. It provides an unprecedented degree of distraction. Part of the human condition has been, that there usually has been no way to avoid the big questions that stare us in the face. Are we created, or are we purely material accidents? Does our life have any meaning or purpose? But as Blaise Pascal observed, instead of grappling with these questions, many human beings are easily distracted from thinking about the final things. And, indeed, we now live in the age of distraction, where we can envelop ourselves in a world of digital stimulation, and universal connectivity. And we have almost limitless ways of indulging all our -- our physical appetites.

There's another modern phenomenon that is suppressing society's self-corrective mechanism, that's making it harder for us to restore ourselves. In the past, when societies are threatened by moral chaos, the overall social costs of licentiousness and irresponsible personal conduct become so high that society ultimately recoils and reevaluates the path it is on. But today, in the face of all the increasing pathologies, instead of addressing the underlying cause, we have cast the state in the role of the alleviator of bad consequences. We call on the state to mitigate the social costs of personal misconduct and irresponsibility. So the reaction to growing illegitimacy is not sexual responsibility, but abortion. The reaction to drug addiction is "safe injection sites." The solution to the breakdown of the family is for the state to set itself up as an ersatz husband for the single mother, and an ersatz father for the children.

The call comes for more and more social programs to deal with this wreckage. And while we think we're solving problems, we are underwriting them. We start with an untrammeled freedom, and we end up as dependents of a coercive state on whom we depend. Interestingly, this idea of the state as the alleviator of bad consequences has given rise to a new moral system that goes hand-in-hand with the secularization of society. It can be called a system of macro-morality, and in some ways, it is an inversion of Christian morality.

Christianity teaches a micro-morality. We transform the world by focusing on our own personal morality and transformation. The new secular religion teaches macro-morality. One's morality is not gauged by their private conduct, but rather their commitment to political causes and collective action to address various social problems. This system allows us not to worry so much about the stretchers on our own private lives, because we can find salvation on the picket line. We can signal our finely-tuned moral sensibilities by participating in demonstrations on this cause or on that.

Something happened recently that crystallized this difference between them -- these competing moral systems. I was attending Mass at a parish I do not usually attend in Washington D.C. And at the end of Mass, the chairman of the social justice committee got up to give his report to the parish. And he pointed to the growing homeless problem in D.C., and explained that more mobile soup kitchens were needed to feed them. This being a Catholic Church, I expected him to call for volunteers to go out and provide for this need -- as volunteers. But instead, he recounted all the visits that the committee members had made to the D.C. government to lobby for higher taxes and more spending to fund mobile soup kitchens.

A third phenomenon which makes it difficult for the pendulum to swing back is the way the law is being used as a battering ram to break down traditional moral values, and to establish moral relativism as the new orthodoxy -- those being used in a couple of ways: First, either through legislation, but more frequently through judicial interpretation, the forces of secularism 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, hence the watershed decision legalizing abortion, and since then, the legalization of euthanasia, and the list goes on, as we all know.

More recently, we have been -- 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 is being forced, secular values are being forced, on people of faith. This reminds me of the way Roman emperors just couldn't leave the minority of Christians in the empire alone. Although they were loyal to the emperor, they couldn't leave them in peace. They would mandate that they had to violate their conscious -- their conscience by offering religious sacrifice to the emperor as a god.

Similarly today, militant secularists do not have a "live and let live" spirit. They are not content to leave religious people alone to practice their faith. Instead they seem to take delight in compelling people to violate their conscience. For example, the 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. And similarly, recently, California has sought to require pro-life pregnancy centers to provide notices of abortion rights.

This refusal to accommodate the free exercise of religion is relatively recent. Just 25 years ago, there was a broad consensus in our society that our laws should accommodate religious belief. In 1993, Congress passed the Religious Freedom Restoration Act. The purpose of this statute was to promote maximum accommodation to religion when the government adopted broad policies that might impinge on religious practice. And at the time, this was not controversial. It was introduced by Chuck Schumer with 170 cosponsors in the House, and was introduced by Ted Kennedy and Orrin Hatch with 59 cosponsors in the Senate, and it passed the Senate by 97-3. But recently, as the process of secularization has accelerated, this statute has come under assault, and the idea of religious accommodation is falling out of favor.

Because this Administration firmly supports accommodation of religion, the battleground at this time has largely shifted to the states. 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. And to me, this is the most serious challenge to religious liberty today. For anyone who has a religious faith, by far the most important part of exercising that faith is teaching that religion to your children. The passing on of the faith: There is no greater gift we can give our children, and no greater expression of love. And for the government to interfere in that process is a monstrous invasion of religious liberty.

Yet, this is where the battle is being joined, and I see that as being waged on three fronts. The first front relates to the content of public school curriculum. Many states are adopting curriculum that is incompatible with traditional Judeo-Christian principles, according to which parents are attempting to raise their children. And they often do this without any opt-out provision 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, quote, "Parents who disagree with the instructional material related to gender, gender identity, gender expression, and sexual orientation may not excuse their children from this instruction." Indeed, in some cases, the schools may not even warn parents about the lessons they plan to teach on controversial subjects relating to sexual behavior and relationships. This puts parents who dissent from the secular orthodoxy to a difficult choice: Try to scrape together enough money to send their kids to a private school or home-schooling, or allow their children to be inculcated with messages that they fundamentally reject.

The 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 rather than religious schools. 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 schools. The point of the program was to provide a greater parental and student choice in education, and to provide better education to needy youth.

But Montana expressly excluded religious affiliated private schools from the program. And when that exclusion was challenged in courts by parents who wanted to use the scholarship to attend a non-denominational Christian school, the Montana Supreme Court required the state to eliminate the entire program, rather than to allow parents to use the scholarships for religious schools. It justified this action by pointing to a provision in the Montana Constitution commonly referred to as the Blaine Amendment. Blaine Amendments, as many of you know, were passed at a time of rampant anti-Catholic animus in this country, and typically disqualified religious institutions from receiving any direct or indirect payment from state funds. The case is now in the Supreme Court, and the Department of Justice has filed the brief explaining why Montana's Blaine Amendment violates the First Amendment.⁶

Finally, the 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 school's teaching on -- on the Catholic view of marriage and the complementarity of the sexes. This lawsuit clearly infringes on the First Amendment rights of the Archdiocese by interfering both with -- with its expressive association, and with its church autonomy. And 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 this case.

Taken together, these cases paint a disturbing picture. We see the state requiring local public schools to insert themselves into contentious social debates without regard to the religious views of their students or parents. In effect, these states are requiring local communities to make their public schools inhospitable to families with traditional religious values. Those families are implicitly told that they should conform or leave.

At the same time, pressure is placed on religious schools to abandon their religious convictions. Simply because of their religious character, they are starved of funds. Students who would otherwise choose to attend them are told that they may only receive scholarships if they turn their sights elsewhere. And simultaneously, they are...the religious schools are threatened in tort cases, and undoubtedly will be threatened with the denial of accreditation if they adhere to their religious character. If these measures are successful, those with religious convictions will become still more marginalized.

I do not mean to suggest that there is no hope for moral renewal in our country. But we cannot sit back and just hope that the pendulum is going to swing back towards sanity. As Catholics, we are committed to Judeo-Christian values that have made this country great. And we know that the first thing we have to do to promote this renewal is to ensure that we are putting our principles into practice in our own personal lives. We understand that only by transforming ourselves will we transform the world beyond ourselves. This is tough work. It's hard to resist the constant seductions of contemporary society, and this is where we need the grace and prayer and the help of the Church.

Beyond this, we must place greater emphasis on the moral education of our children. Education is not vocational training. It is leading our children to the recognition that there is Truth, and helping them develop the facility to discern and love the Truth, and the discipline to live by it. We cannot have a moral renaissance unless we succeed in passing to the next generation our faith and values in full vigor.

The times are hostile to this. Public agencies, including public schools, are becoming secularized and increasingly actively promoting moral relativism. If ever there was a need for a resurgence of Catholic education, and more generally religiously-affiliated schools, it is today. I think we should do all we can to promote and support authentic Catholic education at all levels.

Finally, as lawyers, we should be particularly active in the struggle that is being waged against religion on the legal plain. We must be vigilant to resist efforts by forces of secularization to drive religious viewpoints from the public square, and to impinge upon our 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 all our American liberties: The freedom to live according to our faith.

Thank you for the opportunity to talk with you today, and God bless you, and Notre Dame.

Book/CDs by Michael E. Eidenmuller, Published by McGraw-Hill (2008)

¹ Paraphrased. Verbatim quotation: "I want to confirm that Bill Barr, one of the most respected jurists in the country, highly respected lawyer, former Attorney General under the Bush Administration, a terrific man, a terrific person, a brilliant man...respected by Republicans and respected by Democrats...will be nominated for the United States Attorney General position. I think he will serve with great distinction. [Source: https://www.youtube.com/watch?v=q5SS-UB3JgM]

² Edmund Burke, letter to a Member of the National Assembly of France (1791)

³ Paraphrased. Verbatim quotation: "We have staked the whole future of our new nation, not upon the power of government; far from it. We have staked the future of all our political constitutions upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments of God." -- James Madison, To the General Assembly of the State of Virginia, 1778 [Source: https://www.foundingfatherquotes.com/quote/674]

⁴ Verbatim quotation: "We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition, Revenge, or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other." -- John Adams, To the Massachusetts Militia, 11 October 1798 [Source: https://founders.archives.gov/documents/Adams/99-02-02-3102]

⁵  From The American Proposition. Extended quotation: "Part of the inner architecture of the American ideal of freedom has been the profound conviction that only a virtuous people can be free. It is not an American belief that free government is inevitable, only that it is possible, and that its possibility can be realized only when the people as a whole are inwardly governed by the recognized imperatives of the universal moral law." [Source: https://www.library.georgetown.edu/woodstock/murray/whtt_c1_1954d]