Ken Starr on Religious Liberty

Tooley: Hello this is Mark Tooley, president of the Institute on Religion & Democracy, with the special pleasure today of talking to judge Ken Starr, who’s resume is so lengthy I’m not sure where to begin. But the former dean of the law school at Pepperdine University, former president of Baylor University, former Solicitor General of the United States, and, of course, a Special Prosecutor during the Clinton Administration. He has published a wonderful new book [Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty] on the crisis in religious freedom in America today, although I think, unlike many others, Judge Starr is somewhat optimistic about the fate of religious liberty in America today. Although, obviously, also wary of the ongoing challenges. So, Judge, thank you so much for joining this conversation.

Starr: Thank you, Mark. It’s so good to be with you.

Tooley: Now, your career has been so varied. Please explain your special interest in religious liberty.

Starr: Well, I’m a believer, and so I’ve long been interested in issues of faith and the intersection of faith and politics in the public square. And I remember also vividly a book that was very troubling called The Naked Public Square from now a generation ago; the idea that the religious voice really shouldn’t be heard in the marketplace of ideas was stunning to me since, as a youngster living through the Civil Rights Movement watching Dr. King in the 1960s in particular, reading with admiration “Letter from a Birmingham Jail,” his leadership for the Southern Christian Leadership Conference, and so forth. There was a real disconnect between parts of the culture than what I saw was the tradition of the faith community, which is standing for human dignity for all persons, but only through the exercise of faith. And sometimes that meant, from Dr. King’s perspective, civil disobedience and suffering the consequences. And so, I fear that we were departing from the great traditions and culture of freedom, and that has really been the case in recent years with the advent of the cancel culture, shouting voices down, not permitting voices in the marketplace to begin with, and so forth. So, I felt the time had come, especially with the onset of the pandemic when we saw the explosive growth of government at all levels, to speak into the culture and to also equip those of us who are concerned about religious liberty with a deeper understanding of our culture of freedom, our constitutional culture, in a way that’s accessible to all persons. As I said, I wanted to write this for high school students and their grandparents. I don’t want to leave out the parents, but it’s now up to the grandparents, I believe as a grandparent to eight wonderful grandchildren, we’ve got to be part of the transmission that did not occur over this last generation, the transmission of the culture of liberty.

Tooley: And as you explain well, religious freedom should not be the concern exclusively of religious people, it should be of concern to all people who cherish human dignity and human liberty and cherish all other human rights, absent of which there cannot be freedom for all.

Starr: Exactly. This should be a universal concern, because religious freedom is one very important dimension of human dignity, who we are as human beings. And the ability is guaranteed by the First Amendment to exercise our faith, not simply as some candidates have put it in presidential campaigns, “freedom to worship,” that goes without saying. But even there, we’ve seen the pressures brought on by the pandemic, especially with certain governors, famously or infamously Governor Newsom of California and Governor Cuomo of New York, really stepping in in a very heavy-handed way and essentially closing down religious worship in the name of public health when other activities, secular activities, were permitted to go on merrily as before.

Tooley: On the one hand, increasing threats to religious freedom, especially in the arena of LGBTQ affirmation, at the same time, a string of positive court rulings defending religious freedom. So, two different channels that are occurring concurrently, correct?

Starr: That is correct, and this is the culture clash. Now, with the culture of cancelation and the agenda of certain groups, the LGBTQ agenda at times coming into direct conflict with one of our basic freedoms, which is freedom of conscience. Freedom of conscience is one of the six great principles that I described in the book. And we now need, especially the rising generation, the ability to engage in the public square, even if it’s our roommate, our next-door neighbor, for college kids or for people in the suburbs or in the cities, to say, “Now wait a second, we have historically in this country as a matter of constitutional right protected the conscience of objectors.” And what’s an issue in cases such as Jack Phillips, the Masterpiece Cake Shop specialty cake baker, is the question whether we will allow essentially a pluralistic society to continue to flourish and respect people of conscience when they cannot, as Jack Phillips could not, in conscience celebrate a same sex wedding. Just as he could not and would not celebrate, he was asked to celebrate a divorce, given his worldview as an evangelical Christian, he could not in conscience celebrate certain of these occasions, including Halloween. And he would celebrate a holiday evening, but he couldn’t celebrate Halloween, he could celebrate All Saints Day. We have always had room in this country, going back to the Revolutionary War, for conscientious objectors. We can disagree with them or agree with them, but we at least respected them and their right to say no. And so here is the good news, the Supreme Court of the United States continues to protect freedom of conscience.

Tooley: Now, with the ongoing decline at least of formal religious identification in America, is that a special threat to religious freedom or is the concept of freedom of conscience so embedded in American culture that we can be relatively hopeful?

Starr: Oh, I think we can be very hopeful because that’s a matter of individual choice in conscience, whether to believe or not to believe, and that’s part of basic human dignity. One of the great principles that I articulate in the book is freedom from coercion. The government should not be part of an effort to coerce individuals to affirm faith, either in politics or in religion, philosophy, and the like. This, again, is who we are as a people. The blessings of liberty, which is what the preamble to the Constitution spoke about, and that blessing of liberty includes the idea that government just can’t enter here. One of the principles I talk about is the idea of autonomy of religious institutions to even be free from the civil rights laws in certain important respects, in determining who the ministers are, who will be teaching in Christian schools or other religious schools, and so forth. And this has gained unanimous support from the Supreme Court of the United States, including Ruth Bader Ginsburg when she was on the Court.

Tooley: If you don’t mind my getting personal, Judge Starr, you come from a religious background yourself, with your father a minister?

Starr: Yes, he was a minister and a barber to make ends meet. So, he did not serve very wealthy churches, to put it mildly.

Tooley: And you have spent time on Christian related campuses in recent years, where, if you had to make sweeping generalizations, where are young people today in terms of these issues of freedom of conscience and religious liberty?

Starr: There’s been an erosion in the commitment to religious liberty and freedom of conscience, even for those going to religiously affiliated schools, including Christian schools. And so, I think there is a real need for transmission of this invaluably sacred culture that we’ve had for these many generations, for all of our ups and downs. Even Frederick Douglass, freed from slavery, imagine that, still spoke so glowingly about the genius of American institutions. And part of that institutional genius is the separation of powers and to ensure the independence of the Supreme Court of the United States. And of course, that’s under assault now with the ideas of court packing and the like. So, there’s so many pressures now on our structure of freedom, our institutions that have protected our freedoms, and so, it’s time for us to inform ourselves as thoughtful participants in the public square and to be willing and then able to stand up at a city council meeting or a school board meeting as citizens, or to write our school board member, to say wait a second, this particular curriculum is one that gives me concerns for the following reasons. This book is designed to be a tool in the tool chest of grandparents all the way down to homeschoolers.

Tooley: Your book certainly is an important new resource for making these arguments. Religious freedom would have been seen as non-ideological and non-partisan 25 years ago; in a way, it no longer is. It’s typically associated with the right side of the political spectrum now. How can religious freedom advocates speak to the left side of the spectrum on these issues effectively?

Starr: I think, as the Apostle Paul, or St. Paul, did in Athens, as recorded by Luke in the acts of the apostles, we speak into the culture and we speak when winsomely. And a place to begin is the bedrock of human dignity and the idea of a pluralistic society, that coercion is really quite, quite bad. There are times when we, speed limits and so forth, have to be coerced for reasons of public safety, but the baseline should be liberty, and that’s what we want to lift up. Again, the fundamental baseline that unites us as a free people, and why people are rushing into this country, is the idea of liberty, including religious liberty. But economic liberty, the idea and the opportunity to society to have an idea and to pursue it and not to be coerced. To have official coercion of belief and action is a very, very shameful thing that is completely inimical to who we have been for these two centuries plus. But building, it’s not as if we suddenly invented the idea, it’s a very biblical idea of the human dignity of all individuals and their right to believe as they are led to believe or not to believe. But it’s also embedded in our legal culture, going back to the Magna Carta, and Runnymede, and King John who was willing to say I John am a Christian king, but I’m not under the law. No, Your Majesty, you are under the law as well. And so, that’s part of our idea. No one is to be above the law, and why is that? Because each person has his bedrock freedoms, and those bedrock freedoms must be respected, even by governmental authority.

Tooley: You’re focusing, importantly, on threats and conversations about religious freedom in the US, but is there an important connection to be made in terms of advocacy for religious freedom in the United States, but also advocating on behalf of persecuted religious believers who face far more dire situations around the world at the same time?

Starr: Yes, they’re completely compatible. We should be very mindful of erosions of our own freedom. But especially when we look around the world, all the conditions are suggesting that we as Americans, as a great bastion of religious freedom, should be deeply concerned and vexed by what we see, including most horribly, genocide by the Chinese Communist Party directed at the Uyghur Muslims, the erosion of fundamental freedoms, including religious freedom, in Hong Kong, which is a tragedy unfolding before us, the persecution in so many predominantly Muslim countries of people who say no, I’m led to a different worldview and here it is. This was a freedom that was guaranteed, lifted up, after World War II and the horrors of World War II. The Universal Convention of Human Rights, that declaration that was then invited and a convention which is binding international law, but we’re moving away from that. And America should in fact continue to stand, as it has stood in recent years, against these kinds of movements, to speak out against them, and to do everything that we can to assist those who are persecuted on grounds of religious freedom. And, yes, as a Christian I’m deeply concerned about the underground church and the persecution of Christians. But coming back to China, Mark, as you will know, there has been historic persecution of the Tibetan Buddhists, the Falun Gong, and this extreme persecution of the Muslims, the Uyghur Muslims, and the effort to Sinicize everything and eradicate all forms of religious freedom except the idea of the state. We’ve seen that in North Korea, haven’t we, with a virtual genocide against the people of North Korea, which we don’t talk nearly enough about. And now, this third generation of leadership that’s essentially an organized criminal enterprise and that will continue to persecute Christians. We need to be lifting up our voices against this and condemning it. So, I praise the Biden Administration for not having walked away from Secretary Pompeo’s and President Trump’s designation of China as having engaged in genocide against the Uyghur Muslims.

Tooley: And finally, Judge Starr, you’ve had such a varied career. You’ve written this important book on religious freedom. Could you share what your next project is, what you’re working on primarily these days?

Starr: Yes. Well, in addition to practicing law to put bread on the table, and thank you for asking, I am very worried about the erosion of respect, including in the educational system, for our founding principles. This book, may I hold it up? Yeah, if that’s visible there. I’m now beginning my research into subjects very dear to me, which is, I’m just calling the working title of my next project “independence eve,” and that is what led our founding generation and the generation before them to say we’re going to depart violently from the mother country. They were Englishman, but they felt as if their rights as English persons were being violated, and so they should stand up on pain of death for those rights. And I think we need to recapture that, especially when we have projects such as The New York Times 1619 Project to suggest that our founding was just evil. And let me just close by saying I love to cite the words of the Northwest Ordinance of 1787, and repassed by the First Congress, one of its first acts in 1789 under the new government under the Constitution, and the words are “religion, morality, and knowledge” being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. And for those such as the 1619 Project who said oh, well all these things are simply a tool of white supremacy and so forth, the Northwest Ordinance outlawed slavery in the Northwest Territory. So, please, let’s dishonor the whole scourge of slavery. Let’s give thanks for the post-Civil War amendments, for the emancipation, for the voices of Frederick Douglass and the great heroes of the underground railroad, for the abolitionists who were overwhelmingly Christian voices speaking to human dignity, saying dignity for all persons. Let’s not ignore that precious part of our history. When we confess our sins, we shouldn’t simply say as a country we are somehow evil and bad. We’re not. We’re an exceptional country, as articulated so eloquently by de Tocqueville in the 1830s. We remain that, but these fundamental values and premises are under assault. We need to recapture the goodness of America and articulate it.

Tooley: Ken Starr, author of Religious Liberty in Crisis, thank you very much for an enjoyable conversation and for your very important book.

Starr: Thank you, Mark. It’s a privilege to be with you.