Michael W. McConnell, a member of the Deseret News Editorial Advisory Board, is the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School. Previously, McConnell served as a judge on the U.S. Court of Appeals for the 10th Circuit in Salt Lake City. His opinions are his own and do not necessarily express those of the newspaper or its management.
The modern conservative philosophy of limited government has both material and spiritual dimension: it weds preservation of a free economy to respect for the religious beliefs that undergird this nation's moral character. Both halves of that vision are under attack by big government, which seizes control over ever larger portions of our nation's resources, while forcing churches, mosques and synagogues to follow federal policy instead of the dictates of conscience.
No senator has fought longer, or more effectively, in defense of religious liberty for all Americans than Utah's Sen. Orrin Hatch. Drawing on the Mormon experience of religious persecution in the 19th century, Hatch has led the effort to provide practical protection for Americans of all faiths.
Hatch spearheaded passage of the most important modern statute on the subject: the Religious Freedom Restoration Act, or RFRA. The first use of RFRA was to protect the right of my former Presbyterian church in Washington, D.C., to continue a homeless feeding program in the church basement, when local zoning officials attempted to shut it down.
In 2000, Hatch wrote, sponsored and helped pass the Religious Land Use and Institutionalized Persons Act, or RLUIPA. If local zoning boards deny churches a building permit, a church can sue under RLUIPA and force the zoning board to prove that the permit denial was necessary.
RLUIPA also protects the right of prisoners to worship in accordance with their conscience. During debates on the bill Hatch argued, "just because they are prisoners does not mean all of their rights should go down the drain" and that "(religion) is one of the best rehabilitative influences we can have." In 2006, a Mormon inmate in Louisiana was denied access to LDS religious writings because the book publishers were not on the prison's "Approved Vendor List." He sued under RLUIPA, and the prison settled, allowing him to order books from sources like Deseret Book and the Brigham Young University Bookstore.
More recently, Hatch has taken a stand against the Obama administration's contraception mandate, which Hatch called "discrimination masquerading as compassion" and "unconstitutional to its very core." Under this ruling, religious employers are required to cover the cost of contraceptive services, including abortion-inducing drugs, in violation of their religious conscience and teachings. At a Senate Finance Committee hearing in February, Hatch questioned Health and Human Services Secretary Kathleen Sebelius about the policy. Sebelius confessed that her department never analyzed the religious liberty problems raised by the mandate, despite receiving multiple requests from Hatch and other senators. When Hatch asked who Sebelius had consulted while drafting the mandate, she admitted that she had not spoken to the Catholic bishops, but that she "assumed some (pro-choice) groups were talked to."
Hatch has argued that the mandate "cannot be allowed to stand" because "our Constitution demands that those individuals and institutions that object to providing these services on religious and moral grounds be protected." He supported the Blunt Amendment, which would have protected employers from being forced to offer services they find morally repugnant. Democrats blocked it, and the amendment failed 51 to 48.
A political solution is unlikely, but Hatch's legislative achievements offer hope for protection in court. Several religious groups have sued, arguing that the mandate violates RFRA. As Hatch noted, "the fight for religious liberty began before America was born, and it must be fought continually." Because of Orrin Hatch, when Americans fight for religious liberty, they have powerful instruments of law on their side. And if the case gets to the Supreme Court, they will have the benefit of justices like Clarence Thomas and Samuel Alito, whose confirmations Hatch fought tirelessly to achieve.
Conservatives often wonder what their senators and representatives are doing to protect our fundamental freedoms against the tides of big government in Washington. In the case of Orrin Hatch, the answer is — plenty. We need him back in Washington for another term.