William Barr's Wild Misreading of the First Amendment

By Jeffrey Toobin, The New Yorker

19 October 19

illiam P. Barr just gave the worst speech by an Attorney General of the United States in modern history. Speaking at the University of Notre Dame last Friday, Barr took “religious liberty” as his subject, and he portrayed his fellow-believers as a beleaguered and oppressed minority. He was addressing, he said, “the force, fervor, and comprehensiveness of the assault on religion we are experiencing today. This is not decay; this is organized destruction.”

Historically illiterate, morally obtuse, and willfully misleading, the speech portrays religious people in the United States as beset by a hostile band of “secularists.” Actually, religion is thriving here (as it should be in a free society), but Barr claims the mantle of victimhood in order to press for a right-wing political agenda. In a potted history of the founding of the Republic, Barr said, “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.” Not so. The Framers believed that free government was suitable for believers and nonbelievers alike. As Justice Hugo Black put it in 1961, “Neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion. Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” But the real harm of Barr’s speech is not what it means for historical debates but what it portends for contemporary government policy.

The real giveaway of Barr’s agenda came near the end of his speech, when he said, with curious vagueness, “Militant secularists today 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 a delight in compelling people to violate their conscience.” What’s he really talking about here? Barr and the Trump Administration want religious people who operate businesses to be allowed to discriminate against L.G.B.T.Q. people. The Trump Justice Department supported the Colorado bakers who refused to make a wedding cake for a gay couple (in a case that the Supreme Court basically ducked last year), but more such lawsuits are in the pipeline. Innkeepers, restaurant owners, and photographers are all using the free-exercise clause of the First Amendment to justify their refusal to serve gay customers. This is Barr’s idea of leaving “religious people alone to practice their faith.” The real beleaguered minorities here are gay people who are simply trying to be treated like everyone else, but Barr twists this story into one about oppression of believers.

The heart of Barr’s speech is devoted to a supposed war on religion in education. “Ground zero for these attacks on religion are the schools. To me, this is the most serious challenge to religious liberty,” he said. He asserted that the problem is “state policies designed to starve religious schools of generally available funds and encouraging students to choose secular options.” Again, Barr engages in a measure of vagueness to obscure his real subject. Historically, parochial schools have flourished largely outside of government supervision and, just as important, without government funding. This reflects the core meaning of the establishment clause, which enshrines the separation of church and state.

But, in recent years, a key tenet of the evangelical movement (and its supporters, like Barr) has been an effort to get access to taxpayer dollars. In a major case before the Supreme Court this year, the Trump Administration is supporting religious parents who want to use a Montana state-tax-credit program to pay for their children’s religious schools. This effort is also a major priority of Betsy DeVos, the Secretary of Education, who is pushing for the increased availability of taxpayer vouchers to pay for religious schools. Barr portrays these efforts as the free exercise of religion when, in fact, they are the establishment of religion; partisanship in the war between the religion clauses is one of the signatures of Trump’s tenure in office. Of course, the necessary corollary to providing government subsidies to religious schools is starving the public schools, which are open to all children, of funds.

Perhaps the most galling part of Barr’s speech, under current circumstances, is its hymn to the pious life. He denounces “moral chaos” and “irresponsible personal conduct,” as well as “licentiousness—the unbridled pursuit of personal appetites at the expense of the common good.” By contrast, “religion helps teach, train, and habituate people to want what is good.” Throughout this lecture, one can only wonder if William Barr has ever actually met Donald Trump.