William Barr, Donald Trump’s nominee for attorney general, is widely regarded as a respected, experienced moderate likely to win support from Democrats and Republicans alike.
But in a 1995 essay, Barr expressed an extreme view that American government should not be secular, but instead should impose “a transcendent moral order with objective standards of right and wrong that… flows from God’s eternal law.”
Barr went on to blame everything from crime to sexually transmitted diseases on a government-led attack on “traditional values.” He explicitly called for the government to subsidize Catholic religious education and to promote laws which “restrain sexual immorality,” a reference to homosexuality and extramarital sex.
These views are no longer those of a private citizen. As attorney general, Barr would have more influence than anyone else in the country in how laws dealing with religion, LGBT rights, civil rights, and women’s rights are enforced or not.
Barr served as attorney general from 1991 to 1993. After he left government, he laid out his views in an essay, “Legal Issues in a New Political Order” published in the St. John’s University Law School journal The Catholic Lawyer.
“The American government,” he wrote, “was predicated precisely on [the] Judeo-Christian system” that “flows from God's eternal law.” But since the 1960s, Barr wrote, “the state no longer sees itself as a moral institution, but a secular one.”
Specifically, Barr continued, “through legislative action, litigation, or judicial interpretation, secularists continually seek to eliminate laws that reflect' traditional moral norms. Decades ago, we saw the barriers to divorce eliminated. Twenty years ago, we saw the laws against abortion swept away. Today, we are seeing the constant chipping away at laws designed to restrain sexual immorality, obscenity, or euthanasia.”
In fact, those “barriers to divorce” often forced women to remain in abusive or miserable marriages, and treated men as the “head and master” of the household with near absolute power, especially over shared property. And the “laws designed to restrain sexual immorality” criminalized gay sex, condemning millions of lesbian and gay people to lives of misery, isolation, and vulnerability to criminal prosecution and violence.
In another specific example, Barr bemoaned the fact that “laws are proposed that treat a cohabitating couple exactly as one would a married couple. Landlords cannot make the distinction, and must rent to the former just as they would to the latter.” In other words, it would be better to allow housing discrimination against unmarried couples, gay or straight (and all gay people, if same-sex marriage were not an option).
All of these positions would have profound effects on the Department of Justice.
If Barr wishes laws to “reflect traditional moral norms” or “restrain sexual immorality” he can decline to enforce those which, in his view, do not. As we have already seen, vast “religious exemptions” have already been implemented by the Department of Justice under Jeff Sessions that protect landlords (and restaurant owners, hoteliers, and everyone else) from prosecution for discrimination. An entire DOJ office—headed by Roger Severino, the author of the recent memo claiming transgender people don’t exist—has been created to protect such individuals.
Barr’s view of government raises a number of important questions—questions that should be asked during Barr’s confirmation hearings.
Does Barr still believe that the state should become (or perhaps become again) a non-secular institution? Does Barr believe that the United States is a Christian nation? Should it, like Gilead in The Handmaid’s Tale, enforce religious law?
Will Barr enforce federal anti-discrimination laws, or ignore those that conflict with the Catholic conception of “natural law,” as he defines it in his essay?
What alternatives does Barr see to a “powerful state that sees itself as a secular institution alleviating the consequences of misconduct and often promoting moral relativism?”
Is same-sex marriage a form of “sexual immorality,” and if so, how would a Barr-led Justice Department act to protect or undermine it?
Does Barr still think that “the state is called upon to remove the inconvenience and the costs associated with personal misconduct”—and what are some specific examples of laws that do so, and that he would thus leave unenforced?
Barr also has a disturbingly puritanical view of the last 50 years of American history. In his essay, he complains that “since the mid-1960s, there has been a steady and mounting assault on traditional values.” As a result of that “assault,” Barr writes, “we have lived through thirty years of permissiveness, the sexual revolution, and the drug culture…. We have had unprecedented violence. We have had soaring juvenile crime, widespread drug addiction, and skyrocketing venereal diseases.”
Of course, we’ve also lived through the civil rights movement, the cultural flowering of the 1960s and 1970s, and the partial liberation of women and LGBT people—but these are unmentioned. Barr’s jeremiad reads like something out of Footloose or, again, The Handmaid’s Tale.
And Barr has a highly dualistic, simplistic, and moralistic view of conservatives and liberals. His essay describes a “historic struggle between two fundamentally different systems of values.” On the one hand is the “traditional Judeo-Christian moral system.” On the other is “secularism and the doctrine of moral relativism.”
This is obviously false: in fact, moderate religionists and the ‘spiritual but not religious’ comprise a large plurality of Americans, and they are neither wedded to traditionalist doctrines nor to relativism. They understand that principles such as treating people fairly, minimizing suffering, and providing access to justice are indeed fundamental ethical values. Liberals do not believe, as Barr alleges, that “everyone writes their own rule book.” They simply do not believe that morality depends on God-given natural law.
Once again, these are not personal statements of faith, but political statements as well. The possibility is real that the next attorney general may actually believe that the state should become a non-secular institution. That worldview is profoundly undemocratic. If laws are decided by God, what’s the point of a legislature? Can voters legitimately overturn God’s will? And if not, what is the job of an attorney general?
The conclusion of Barr’s essay is perhaps the most troubling part of all.
“The real message,” Barr wrote to his putatively conservative Catholic audience, “is that we are going to have to do more than joust around the margins. We must reenter the fray in an effective way; take the battlefield and enter the struggle.”
That is a militaristic, us-versus-them message. And the essay’s proposal for undoing the secular state is to subsidize Catholic religious education so that Catholics can “reassemble the flock” and fight on the political battlefield as true believers: “This means vouchers at the state level and ultimately at the federal level to support parental choice in education. We should press at every turn for the inclusion of religious institutions. We need to fight those cases in the states up to the Supreme Court. Whether or not we prevail on programs should make no difference. The message will get stronger.”
The views that Barr has expressed are not those of a moderate as he is being portrayed but of an arch-conservative with an extreme, hostile view of most of American society. In his world, the Christian nation has been corrupted by decades of post-1960s relativism and secularism. Unless he has revised his positions in recent years, Barr’s appointment would be a disaster for the civil rights of women, LGBTs, non-religious people, and others.
According to Barr, the government was never meant to be secular; it was meant to enforce ‘Judeo-Christian’ morality.
And now is Barr’s opportunity to do just that.