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Acting Attorney General Matthew G. Whitaker Delivers Remarks at the Heritage Foundation to Commemorate 25th Anniversary of the Religious Freedom Restoration Act


Washington, DC
United States

Thank you, Tom for that kind introduction and thank you for your leadership at the Ed Meese Center.  Ed Meese is a personal hero of mine and you are helping to carry on his legacy of upholding the Constitution and defending the rule of law.

Thank you also to Jennifer Marshall, John Malcolm, and especially to our panelists.  Each one of you brings a unique perspective to today’s discussion—but we are all united in our shared values of tolerance and mutual respect.

I want to start by wishing everyone a happy Religious Freedom Day.

Two-hundred thirty-three years ago, the Virginia Senate passed the Statute for Religious Freedom, which remains one of the most eloquent defenses of religious freedom ever written.

It states that “truth is great and will prevail if left to herself…[Truth] has nothing to fear…unless…disarmed of her natural weapons: free argument and debate.”

The statute protected Virginians from being compelled to attend or support any religious service or ministry or from being punished because of their beliefs.

The statute did not claim that these were privileges or gifts to the people.  It says, “we declare that the rights hereby asserted are of the natural rights of mankind.”

The author of the bill—Thomas Jefferson—considered it one of his greatest achievements.  In fact, on his tombstone, it does not say that he served as President. It says three things: that he authored the Declaration of Independence, founded the University of Virginia, and that he authored the Virginia Statute for Religious Freedom.

When the bill passed, Jefferson was in France as a diplomat. The legislator who championed the bill was a 34-year old delegate named James Madison.

Within just a few years, Madison became the Father of the Constitution and authored the First Amendment.

Jefferson, Madison, and the rest of our Founders took great care to protect the rights of religious people in this country.

As we look back now, we can see why: because religious freedom has made this country stronger.

Every day in America religious charities feed the hungry, care for the sick and the elderly, and give our children a good education.

People of faith can be found in every walk of life and in every corner of this land.  Good citizens of every creed have made contributions that have enriched this nation.  That benefits all of us, whether we share their beliefs or not.

Religious freedom makes our country stronger.  And that is why threats to religious freedom are also threats to our national strength.

For more than two centuries, the American people have recognized that.

In November we celebrated a much more recent statute than the Virginia Statute for Religious Freedom.  We marked the 25th anniversary of the Religious Freedom Restoration Act, or RFRA.

RFRA codified in statute the strict scrutiny test that the Supreme Court had famously used in Sherbert v. Verner and Yoder v. Wisconsin.

Under RFRA, the government cannot burden someone’s religious exercise unless it is seeking to further a compelling interest—and doing so by the least restrictive means it can.

Under RFRA, religious freedom is not absolute, but it is protected by one of the highest standards in constitutional law. 

Government is still able to fulfill its purposes—but without infringing on people’s rights.

It is a remarkable thing for any government to impose such restraints on itself. 

It would have been much easier for a government to disregard the costs on individual liberty and conscience.  And in all too many countries in this world, that’s exactly what governments do. 

But the enactment of RFRA was a bold affirmation that religious freedom and freedom of conscience are precious and deserving of protection, even when it makes things a little harder for the government.

This affirmation is even more striking because it was the result of a consensus.  RFRA’s enactment was completely bipartisan.

RFRA was authored by then-Congressman Chuck Schumer.  It passed the House unanimously and was approved 97 to 3 in the Senate.

When he signed it into law, President Clinton said, “it is interesting to note…what a broad coalition of Americans came together…to protect perhaps the most precious of all American liberties, religious freedom.”

Vice President Al Gore remarked that “when you have the National Association of Evangelicals and the ACLU…the Traditional Values Coalition and People for the American Way [on the same side], we’re doing something right.”

What a difference 25 years makes.

Today many of RFRA’s original supporters, including the ACLU, have changed their minds.

In recent years, when some states have attempted to pass their own versions of RFRA, they have been met with bitterness and hostility.

Meanwhile others have disregarded both the spirit and the letter of RFRA.  They have tried to use the power of the state to make people choose between following their core beliefs and being good citizens—even when it is not remotely necessary.

For example, we’ve seen nuns ordered to pay for contraceptives.

We’ve seen a United States Senator refer to an evangelical Christian nominated by President Trump as “not someone…this country is supposed to be about.”

We’ve witnessed the ordeal of Jack Phillips in Colorado.  That ordeal is still going on today.

We’ve seen groups that defend religious freedom—including one that is undefeated at the Supreme Court over the last seven years—labeled as “hate groups.”

Sadly, there are many other examples.

But I’m proud to say that this administration is doing something about it.  We have a President who is standing up for the First Amendment.

Soon after he took office, President Trump ordered the Department of Justice to issue legal guidance to the Executive Branch on legal protections for religious liberty.  In October 2017, we issued that guidance, which explains the fundamental religious liberty principles in the Constitution and in federal statutes like RFRA.

We’ve been putting that guidance into action by defending the rights of the American people in both criminal and civil cases.

Under President Trump, we have obtained 14 indictments and 10 convictions in cases involving attacks or threats against houses of worship and against individuals because of their religion.

Under this administration, we have indicted 50 hate crime defendants.  And in just the last fiscal year, we obtained 30 hate crime convictions.

With regard to civil cases, we have gone to court all across America to protect people of a wide variety of faiths. 

We defended parents in Montana who claim that the state barred their children from a private school scholarship program just because they attend a religious school.

Under President Trump the Department has filed five amicus briefs in cases alleging discrimination in zoning laws.  We have done so on behalf of a Hindu temple, a Catholic church, and we’ve filed a lawsuit of our own on behalf of an Orthodox Jewish congregation.  We have also settled four cases involving mosques.

We got involved in a First Amendment lawsuit filed by Alliance Defending Freedom against Georgia Gwinnett College, a taxpayer-funded school that allegedly punished a student for sharing his faith outside of a designated “free speech zone.”

And most recently, the Department filed an amicus brief defending a memorial honoring soldiers killed in World War I.  The memorial is a large cross, built using private funds, that stood for nearly 90 years without any complaint. 

But now, the plaintiffs say that it endorses one religion over another.  They want it to be destroyed—but we believe that it should stand and continue to honor the memory of the fallen.

In July, we announced our Religious Liberty Task Force, which is responsible for making sure that we respect the conscience rights of the 115,000 Department of Justice employees. 

It is also responsible for reviewing if there are instances in which the federal government is discriminating against religious institutions simply because they are religious—which is illegal under the Supreme Court’s Trinity Lutheran decision. 

That review will help us stay aggressive in defending the right of free exercise in court.

We are proud of our efforts in the courtroom.  But not everything needs to be decided before a judge. 

In the long run, perhaps it is more important to uphold RFRA in spirit, not just in the letter of the law.

RFRA promotes authentic tolerance—because RFRA makes a solemn promise to the people of this nation that we can find a place for them, regardless of who they are, and regardless of their beliefs. 

RFRA affirms that good citizenship is open to every American, whether they’re religious or not. 

And above all, it underscores the fact that government’s primary task is to protect the rights of its citizens.

That is why I am hopeful that we can recover the consensus in support of religious freedom that came together 25 years ago.  If we do that, then we can create a culture that promotes true tolerance and respect.

And so, as we continue to carry out RFRA, I am grateful that we still have a broad coalition of supporters like all of you.

Updated January 16, 2019