Judge Griffith attended Stanford Law School’s Religious Liberty Clinic’s 10th Anniversary Conference on March 16, 2023, where he delivered these remarks.
There are many reasons to celebrate the 10th anniversary of the Religious Liberty Clinic at Stanford Law School. At the most fundamental level, students at the clinic help people to live consistent with their innermost identity as believers, and that is a praiseworthy endeavor. On top of that, Stanford’s commitment to the clinic reinforces the powerful idea that religious liberty is not only a fundamental constitutional guarantee but is also an integral component of human dignity. That Stanford has made such a commitment also sends a welcoming message of inclusion to people of faith in the increasingly secular world of the academy. Indeed, that commitment has inspired the creation of similar clinics at the law schools at Yale, Harvard, Chicago, Texas, Pepperdine, and Notre Dame, a development that is among the most significant changes for good in the legal academy that I have seen in my lifetime. All credit to Jim Sonne for the way he has led the clinic and its students.
Even so, the laudable work of defending religious liberty in the courtroom is not enough to protect the “free exercise of religion” in our nation.1 People of faith cannot rely on the courts alone, even when the judiciary is led by a Supreme Court that has shown a profound respect for the importance of religious freedom. Proponents of religious liberty must win the hearts and minds of an increasingly secular citizenry for whom the language of faith is a foreign tongue. If people of faith want an increasingly secular American public to value religious freedom, we need to show the power of religion to bind people together to do good, to strengthen what Abraham Lincoln called our nation’s “bonds of affection.”2
Yet for many, the phrase “religious liberty” does not evoke warm feelings. Rather, it is seen as a weapon that divides people. This stark reality was driven home to me several years ago when I spoke at Yale Law School on the topic of “Religious Liberty After Obergefell.” My plan was to make a plea to people of faith to accept the Court’s decision in Obergefell and to work at ways to allow people who are LGBTQ to flourish, not only because that is the right thing to do but because such a response might help others see that faith is a central component in the identity of a believer and deserves protection as well.
But before I could get out more than a few sentences, hostile comments were hurled at me from several agitated students who, knowing that I was a member of a church that had publicly opposed same-sex marriage, assumed that I was going to attack the decision in Obergefell and issue a rally cry against them in the culture wars. Taken aback by the students’ anger, I protested their assumption and asked them to hear me out. Much to their credit, they listened to my message, and then something remarkable happened. At the end of my remarks, many of the students, including some who had been the most agitated by what they thought I was going to say, came together at the front of the classroom and, responding to the theme of my remarks, began discussions with one another about ways in which they could work to accommodate the needs of each other.
That experience at Yale taught me something important about how religious liberty is perceived by those who have seen it used to cause harm. It reminded me of a cartoon in which a skeptical St. Peter, standing at a rostrum at the Pearly Gates, greets a newly arrived applicant: “You were a believer; yes,” says St. Peter. “But you skipped the not-being-a-jerk-about-it part.”
People of faith need to ask whether we have been using our religious freedom to divide people and cause pain or to bind people in community. After all, the Latin root of the word “religion” is “religare,” which means “to bind.”3 I am a Christian who practices my faith as a Latter-day Saint. In that tradition, at-one-ment is the most fundamental moral force in the universe. At-one-ment is what God does and what followers of God are called to do. In our reworking of the Garden of Eden story, Satan’s tactic was to divide men from women — a precursor to his role throughout history. He is the Great Divider. As we see it, at the heart of the biblical narrative is a story of God working to unite His children to Him and to one another in love, culminating in the joining together of heaven and earth.4 In that story, special care is taken to show that God’s followers must work to unite with those on the margins of societies.5
The best description of this view comes from my fellow Latter-day Saint, Stanford Law’s Rob Daines, in remarks he gave to those he was asked to serve in our church: “God’s work is a river of love headed your way. To serve God is to join a work party: people with picks and shovels, trying to help clear this channel for the river of God’s love to reach His children at the end of the row. Single, married, gay, straight, Black or white or brown or anything, educated or not, monied or not, employed or not, every race, every class, every person, every political party, mentally or physically ill. There is room for you in God’s work. Grab a pick and shovel and join the team.”6
Today is the moment for people of faith to work to heal the divides that have beset our nation. There is no more urgent task than to work at reconciliation at a time of toxic political polarization. The problem isn’t that people disagree. Argument is the lifeblood of democracy. What is new and deeply troubling is a phenomenon that social scientists call “affective polarization.”7 This occurs when contempt for an opponent is stronger than commitment to one’s own group.8 It seems that contempt has replaced disagreement in the public square. And this contempt, Arthur Brooks observes, is “ripping our country apart . . . . Political scientists have found that our nation is more polarized than it has been at any time since the Civil War.”9 NYU’s social psychologist Jonathan Haidt warns, “[T]here is a very good chance American democracy will fail, that . . . we will have a catastrophic failure of our democracy. . . . We just don’t know what a democracy looks like when you drain all trust out of the system.”10
We must do better, and fortunately we have a model from our own history. In a fascinating piece of scholarship, titled The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention,11 Derek Webb, a former fellow at Stanford’s Constitutional Law Center, describes how the delegates to the Philadelphia Convention set aside profound disagreements to create the Constitution.12
In early July of 1787, the convention was in a “deplorable state” and faced the very real prospect of failure. George Washington, Benjamin Franklin, and others feared that “dissolution” of the convention was “hourly to be apprehended.” And yet by mid-September, they had produced the Constitution that would be the basis for our enduring success as a nation. In his letter transmitting the Constitution to Congress, Washington attributed this surprising turn of events — what one popular account of the convention called the “Miracle at Philadelphia”— to the “spirit of amity and of that mutual deference and accommodation which the peculiarity of our political situation rendered indispensable.” According to Webb, three factors helped create this “indispensable” “spirit of amity . . ., mutual deference, and accommodation.”
First, the delegates were housed in close quarters, sometimes three or four to a bedroom for four months, making informal social interaction unavoidable. They gathered for deliberations from mid-morning to mid-afternoon Monday through Saturday. Afterwards, they took dinner together at local taverns. They even formed dinner clubs that were open to delegates from all the states and cut across regional and ideological lines. At several key junctures that summer, Benjamin Franklin threw open the doors of his home for lavish dinner parties that featured the finest cuisine available, topped off with Franklin’s special casks of porter. As George Mason wrote to his son, all of this socializing allowed almost perfect strangers with glowing political resumes from various states to “grow into some acquaintance with each other” and to “form a proper correspondence of sentiments.”
Second, the rules of the convention encouraged cooperation and compromise. Attendance was mandatory, which meant the delegates were physically present with one another while in session. No one spoke to an empty chamber. And when a delegate held the floor, the rules forbade others from talking or even reading. No official record of votes was kept, and the proceedings were in secret, which allowed for an openness to argument and, critically, for the changing of views.
But, most importantly, the delegates were willing to set aside their parochial interests and compromise for the sake of unity. The gloomy forecasts of dissolution and failure in July were due, in large measure, to the inability of the delegates to resolve the most difficult issue confronting the convention: Should the representation of states in Congress be on an equal basis or proportional to their populations? Faced with this fatal stalemate, the delegates decided that failure to create a constitution then and there was not an option. They determined that they would compromise even before they knew what the terms of the compromise would be. They took a risk for the sake of creating a union. Significantly, the terms of what is now known as the Great Compromise were first crafted by a committee of carefully selected moderates, not ideologues, that met, not around a table in a conference room, but in the familiar and comfortable domestic setting of Franklin’s home. The miracle of Philadelphia, it turns out, was the product of small group dynamics among people who had made an effort to understand one another and were willing to compromise for the sake of unity.
The structure of the government they created requires a continuation of the type of compromise that produced the Constitution in the first instance. As Yuval Levin points out, “The American Constitution is intended to create common ground. Its structure compels Americans to be a little more accommodating of one another. An effective legislative accommodation doesn’t just give each of the two sides half a loaf. It gives us practical experience in living and acting together.” 13
What does it mean to “support and defend” the Constitution?14 Those who serve in the military and in any government capacity take an oath before their fellow citizens and God to do so. Hopefully, every other citizen is similarly committed to support and defend the Constitution. At the very least, it means that we will “support and defend” the rights protected by the Constitution, and fortunately there are countless citizens dedicated to that effort. But I believe that to support and defend the Constitution means much more than that. It means that we will support and defend the values that gave life to the process by which the Constitution was created. To compromise for the sake of unity is the animating spirit of the Constitution, and it is every bit as vital to its preservation in this moment of toxic political polarization as it was in the summer of 1787.
The most elegant explanation of this approach to push back against the toxic polarization that threatens our democracy was stated recently by former Utah Supreme Court Justice Dallin H. Oaks: “On contested issues, we should seek to moderate and unify.”15 There’s our template. That’s our standard. As Michael Gerson noted, “The heroes of America are heroes of unity.” 16
When he launched his candidacy for the presidency in 1968, Robert F. Kennedy declared, “I want the . . . United States . . . to stand for . . . the reconciliation of men.”17 In his translation of the New Testament into English, William Tyndale used the word “reconciliation” for the Greek word “katallagē,”18 which means “a change from enmity to friendship”19 or “the means through which harmony is restored.”20 But sometimes he used a newly created word to express the concept: “atonement” or “at-one-ment.”21
For people of faith, this may be our most important obligation: to work for at-one-ment, not just between an individual and God but between people now divided by contempt. Only then will we be able to persuade our fellow citizens that the religious liberty that means so much to us is a precious component of the “more perfect union” the Constitution seeks to create.
Thomas B. Griffith was appointed to the United States Court of Appeals for the D.C. Circuit by President George W. Bush in 2005. He retired from the D.C. Circuit in 2020 and is currently Special Counsel at the law firm of Hunton Andrews Kurth and a Fellow at the Wheatley Institution at Brigham Young University. In 2021 President Joe Biden appointed him to the Presidential Commission on the Supreme Court. A graduate of BYU and the University of Virginia School of Law, Judge Griffith was a litigation partner at Wiley, Rein and Fielding in Washington, D.C., prior to being named Senate Legal Counsel of the United States. In that capacity, he represented the interests of the Senate in litigation and advised the Senate leadership and its committees on investigations, including the impeachment trial of President Clinton. Prior to his appointment to the D.C. Circuit, Judge Griffith was the General Counsel of Brigham Young University.
1 This is something Martha Minow declared with prescience in 2007. See Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, 48 B. C. L. Rev. 781, 844 (2007).
2 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 4 Collected Works of Abraham Lincoln 262, 271 (Roy P. Basler et al. eds., 1953).
4 Revelation 21.
5 Matthew 25.
6 Address to Menlo Park Stake, August 2020.
7 Iyengar, S., Lelkes, Y., Levendusky, M., Malhotra, N., & Westwood, S. J, The Origins and Consequences of Affective Polarization in the United States, Annual Review of Political Science, 22(1), 129-146 (2019). https://doi.org/10.1146/snnurev-polisci-051117-073034.
8 Finkel, E.J., Bail, C. A., Cikara, M., Ditto, P. H., Iyengar, S., Klar, S., Mason, L., McGrath, M. C., Nyhan, B., Rand, D. G., Skitka, L. J., Tucker, J. A., Van Bavel, J. J., Wang, C. S., & Druckman, J. N. Political sectarianism in America. Science, 370 (6516), 533-536 (2020).
10 Paul Kelly, ‘Very good chance’ democracy is doomed in America, says Haidt, Australian (July 20, 2019),https://www.google.com/search?q=haidt+drain+trust+democracy+catastrophic+failure&rlz=1C1GCEB_enUS938US938&oq=&aqs=chrome.0.35i39i362l8.8574860j0j15&sourceid=chrome&ie=UTF-8#ip=1.
11 Derek A. Webb, The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention, 64 S. C. L. Rev. 183 (2012).
12 My description of the Constitutional Convention of 1787 and the quotations used are drawn from my article Civic Charity and the Constitution, 43 Harv. J.L. & Pub. Pol’y 633 (2020).
13 Yuval Levin, “The Constitution and National Unity,” National Review (Sept. 16, 2022). https://www.nationalreview.com/2022/09/the-constitution-and-national-unity-go-together/.
14 5 U.S. Code § 3331.
15 Dallin H. Oaks, “Defending Our Divinely Inspired Constitution,” Liahona 45, no. 5 (May 2021): 105, 107.
16 Michael Gerson, Opinion, A primer on political reality, Washington Post (Feb. 19, 2010). Gerson’s claim is made at length in Matthew S. Holland’s Bonds of Affection – Civic Charity and the Making of America: Winthrop, Jefferson, and Lincoln (2007).
17 Robert F. Kennedy, Presidential Campaign Announcement (Mar. 16, 1968), https://www.c-span.org/video/?443225-1/robert-f-kennedy-presidential-campaign-announcement [https://perma.cc/DP9X-GVK9].
18 David Rolph Seely, William Tyndale and the Language of At-one-ment, in The King James Bible and the Restoration 25, 35-36 (Kent P. Jackson, ed., 2011).
19 An Intermediate Greek-English Lexicon: Founded Upon the Seventh Edition of Liddell and Scott’s Greek-English Lexicon 190 (1889).
20 Mercer Dictionary of the Bible 75 (Watson E. Mills et al. eds., 1990).
21 Seely, supra note 22, at 35-36.