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Jul 15 2014

Hatch: Senate Democrats’ Legislation Diminishes Religious Liberty Protections of all Americans

Protections of all Americans In Speech, Utah Senator Blasts Senate Democrats’ Response to Supreme Court’s Hobby Lobby Ruling

(Click the image above for audio/video of Hatch’s speech)

In a speech on the Senate Floor today, U.S. Senator Orrin Hatch (R-Utah), a current member and former Chairman of the Senate Judiciary Committee and a lead author of the Religious Freedom Restoration Act (RFRA), slammed legislation introduced by Senate Democrats’ (S.2578) that limits RFRA and the fundamental right of religious freedom. 

Hatch said that “the Religious Freedom Restoration Act represents this full understanding of religious freedom.  It requires that when Congress considers legislation or executive branch agencies consider regulations, they must take this fundamental freedom into account and give it the respect it deserves.” He added that the Senate Democrats’ bill to limit religious liberty “targets religious freedom as the problem. It treats certain religious beliefs as simply unworthy of recognition and religious exercise in general as a second- or even a third-rate value.” 

Hatch’s full remarks are below: 

Mr. President, I rise today in defense of the most fundamental principle on which our republic was founded—what is rightly recognized as our first freedom—religious liberty.

Mr. President, our fellow citizens today do not think much of Congress.  The Gallup organization, whose results are actually less grim than some other polls, gives Congress a job approval rating of just fifteen percent.  That figure has not risen above the teens in more than three years. 

Now and then, however, Congress does rise to the occasion, putting aside partisan or ideological differences to achieve something important for our nation and its citizens. 

One example occurred in 1993, when liberals and conservatives, Democrats and Republicans, stood up to defend a fundamental human right.  On October 27, 1993, this body passed the Religious Freedom Restoration Act by a vote of 97-3.  By mid-November, the House had passed it unanimously and President Bill Clinton had signed it into law.

Despite the overwhelming, bipartisan support for final passage of RFRA, it took Congress three years to achieve that defense of religious freedom.  The House Judiciary Subcommittee on Civil and Constitutional Rights held hearings in 1990 and 1992 and the full Senate Judiciary Committee held a hearing in 1992. 

Concerned citizens and groups came together to form the Coalition for the Free Exercise of Religion, a grassroots effort more diverse than any I have ever seen.  Americans of every political stripe joined hands to defend the first freedom in the Bill of Rights.

The resulting legislation—the Religious Freedom Restoration Act—allows the federal government to interfere with the exercise of religion only for the most compelling reason and only in the least restrictive way.  This law was necessary after the Supreme Court changed the legal standard in 1990, making it easy rather than difficult for the government to burden religious exercise.

A bill recently introduced here in the Senate, S.2578, would turn the clock back, requiring that federal laws and regulations ignore rather than respect religious freedom. 

This is the first time in American history that Congress will consider a bill intended to diminish the protection for the religious liberty of all Americans.  It is part of a broader campaign to demonize religious freedom as the enemy, as an obstacle to certain political goals. 

It is important for the American people to know the truth about how we got here. 

The Affordable Care Act requires that most employers provide insurance coverage, at no cost to employees, for what it calls preventive services.  Regulations from the Department of Health and Human Services define that category as covering all forms of birth control approved by the Food and Drug Administration, including both contraceptives and methods that can act after conception. 

The difference between a contraceptive and an abortifacient is the difference between preventing and taking human life.  That distinction may be meaningless to some, but it is very important to many, and can be a matter of the most profound moral and religious significance. 

As a result of the birth control mandate, many religious employers faced massive fines if they followed their religious beliefs, so some of them filed suit to prevent its enforcement.  This is exactly the kind of situation that the Religious Freedom Restoration Act was enacted to address, the kind of situation that should require government to justify why and how it wants to interfere with the exercise of religion.

Cases brought by two companies owned by religious families made it to the Supreme Court.  These companies do provide insurance coverage for the FDA's sixteen methods of contraception, but they believe that doing so for its four methods of birth control that can cause abortion violates their religious beliefs. 

Two weeks ago, in a case titled Burwell v. Hobby Lobby Stores, the Supreme Court ruled that the HHS birth control mandate does not sufficiently accommodate these employers' exercise of religion as required by the Religious Freedom Restoration Act. 

Mr. President, it took a lot of work to establish RFRA's defense of religious freedom, but it would not take much work to destroy it.  The bill we will soon consider, S.2578, would in one fell swoop reduce the free exercise of religion from a fundamental human right to a cheap election year prop. 

RFRA was developed over months of discussion and debate.  It was the product of bipartisan deliberation and considered judgment.  It represents vindication of the fundamental and natural rights we originally established government to protect. 

By contrast, S.2578 was thrown together in a matter of days.  It has not received a single committee hearing in either chamber.  In fact, here in the Senate it isn’t even being sent to a legislative committee.  The majority has put their finger to the political wind and decided that all they want is a show vote that they can spin to their advantage in the election this fall.

One sign of what is really going on is the fact that the bill's findings are about four times as long as its actual provisions, and it reads more like a series of press releases than serious legislative language.  The bill’s supporters wish to ram it through Congress without meaningful deliberation, without hearings, without the kind of scrutiny that would expose this effort for what it is.

The bill’s findings, for example, say not one word about the exercise of religion that gave rise to the Hobby Lobby litigation in the first place.  Instead, one of the bill’s findings claims that those lawsuits were filed by employers who simply want to deny their employees health insurance coverage for birth control. 

But, Mr. President, in reality the employers do not want to take anything away from anyone.  They simply ask, as the Religious Freedom Restoration Act requires, that laws and regulations about health insurance coverage also consider and balance their basic right to religious exercise. 

I have heard proponents of this legislation make wild claims that corporations are denying access to health care, intruding into people’s bedrooms, and even taking away their freedoms.  Nonsense. 

Such claims don’t even pass the laugh test.  They are so clearly false that those who peddle such fiction must either ignore both RFRA and the Supreme Court's decision in the Hobby Lobby case or deliberately distort them beyond recognition. 

Just yesterday, the Washington Post’s fact-checker listed example after example of what it charitably described as the rhetoric getting way ahead of the facts as Democrats made one outlandish claim after another.

Finding 19 in this bill is perhaps its most outrageous, claiming that the legislation "is intended to be consistent with the Congressional intent in enacting the Religious Freedom Restoration Act."  But of course, that claim is absurd on its face. 

Congress expressed its purpose in enacting RFRA in the text of that statute, including RFRA's finding that its legal standard applies "in all cases where the free exercise of religion is substantially burdened."  RFRA's most prominent backers in Congress also expressed its intent.  Over in the House, for example, then-Representative Charles Schumer said that RFRA would restore the American tradition of “allowing maximum religious freedom.” 

The bill before us today does the opposite, requiring employers to provide insurance coverage “notwithstanding any other provision of Federal law,” including specifically the Religious Freedom Restoration Act.  If a bill prohibiting consideration of religious exercise is consistent with a law requiring consideration of religious exercise such as RFRA, then words have no meaning whatsoever.

We are also told that S.2578 simply responds to the Supreme Court's recent decision in Hobby Lobby—but in reality it goes much further.  The Supreme Court’s decision involved only the Affordable Care Act and the HHS birth control mandate.  But this bill prohibits consideration of the Religious Freedom Restoration Act regarding insurance coverage of any healthcare item or service required by any federal law or regulation. 

The Affordable Care Act and the HHS birth control mandate apply to employers with at least 50 employees, but this bill’s much broader mandate applies to any employer regardless of size.  The Hobby Lobby case involved a for-profit corporation, but this bill applies to any employer.  This bill appears to be not so much a response to the Supreme Court's decision in Hobby Lobby as an attempt to broaden and extend the Affordable Care Act and the HHS birth control mandate.

The bill’s mandate that health insurance coverage for any healthcare item or service under any federal law or regulation be provided—notwithstanding any other provision of federal law—seems to reach beyond the Religious Freedom Restoration Act. 

Does it include, for example, the Hyde-Weldon amendment or other laws that have, for more than 40 years, protected health care providers and facilities from being forced to participate in abortion?  Before you answer no, remember that no one thought RFRA’s protection for religious freedom would ever be attacked as it is today.

Under S.2578, the lone protections for the fundamental right of religious exercise would be the narrow statutory exemption for churches and houses of worship and the weak administrative accommodation for religious nonprofits that could be revoked at any time. 

Even worse, the bill would allow for a future reduction or elimination of this so-called accommodation but not for its expansion.  Not only would religious freedom be diminished immediately, but what's left would be subject to a one-way ratchet toward elimination.

Earlier this summer, I spoke here on the Senate floor about how religious freedom in America has three key dimensions.  It includes religious behavior as well as belief; it applies collectively as well as individually; and it is public as well as private in scope. 

The Religious Freedom Restoration Act represents this full understanding of religious freedom.  It requires that when Congress considers legislation or executive branch agencies consider regulations, they must take this fundamental freedom into account and give it the respect it deserves.  S.2578 would be the first bill to create an exemption from RFRA—and the first bill explicitly to prohibit consideration of the fundamental right of religious exercise. 

Five years after enacting the Religious Freedom Restoration Act, Congress enacted the International Religious Freedom Act, which established the U.S. Commission on International Religious Freedom.  That legislation declared that the “right to freedom of religion undergirds the very origin and existence of the United States.” 

The Senate passed that legislation by a vote of 98-0, including 10 Democrats who have today co-sponsored the bill before us that would disregard freedom of religion.  Those Democrats include the Majority Leader and the sponsor of S.2578.  They can’t have it both ways.

Like his predecessors, President Obama designated January 16 as Religious Freedom Day.  In his proclamation, the President declared that "my administration will remain committed to promoting religious freedom, both at home and across the globe.  We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future." 

Mr. President, actions speak louder than words. 

Either religious freedom undergirds the origin and existence of America or it doesn’t. 

Religious freedom is either a universal right or it isn’t. 

Religious freedom is either a key to a stable and prosperous future or it isn’t. 

If America is about allowing maximum religious freedom, as my colleague the senior Senator from New York once said, then it should continue to do so. 

It is time for this body to choose whether it will protect religious liberty, or whether it will seek to destroy it.

In 1993, Congress stood up to defend the free exercise of religion after a Supreme Court decision undermined it.  The bill before us today would undermine the free exercise of religious after a Supreme Court decision defended it.  

In 1993, the free exercise of religion was offered as a solution.  The bill before us today targets religious freedom as the problem.  It treats certain religious beliefs as simply unworthy of recognition and religious exercise in general as a second- or even a third-rate value.

Mr. President I believe that we can both uphold fundamental rights and find solutions to public policy issues.  I hope my colleagues on both sides of the aisle, even though we have differences about policy, will once again join together for the common good by recommitting ourselves and our nation to the fundamental right of religious freedom.