Religious freedom in America is under attack from the right and the left. James Madison, the father of our Constitution, referred to the right of conscience as “the most sacred of all property” – our greatest possession.
That right is increasingly insecure. Under his expansive health care initiative President Obama mandated that all institutions provide insurance coverage for contraceptives, including the morning-after pill, even though this mandate violated the religious conscience of Roman Catholics.
The Obama administration narrowly averted a major political crisis when it later agreed to “balance” the government mandate by accommodating the free-exercise rights of Catholics. But now critics say the adjustment doesn't fully exempt the church from funding coverage for birth control, calling it a "shell game." And leaders in the Catholic church have said the compromise amounts to a "hill of beans" and have vowed legal action.
What is clear is that Mr. Obama had the power – and still does – to disregard the right of conscience, if political winds blew in another direction. Does the president really support the freedom of conscience or is his gesture a politically motivated charade?
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Perhaps, but the trend away from religious freedom has been under attack long before the Obama decision.
In 1990, Justice Scalia, a conservative member of the Supreme Court, authored a decision in Employment Division v. Smith, a case considering whether the state of Oregon could deny unemployment benefits to two Native American men for their the use of peyote (a cactus with psychoactive properties when ingested), whose use and possession is illegal in the state, in the Native American Church.
With his ruling, Mr. Scalia rejected past Court precedent that provided stronger protection for the right of religious conscience – precedent that had served our nation well. Largely ignoring the track record under the old rule, his opinion stated that to exempt the men from penalties for their religious use of peyote would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Scalia essentially enunciated a new rule that permits the federal government to violate religious conscience so long as it does so with a general law that is not directly intended to discriminate against religious exercise. In that single act, the Court reduced religious conscience from a right to a mere privilege.
The response to Scalia’s opinion was dramatic. Congress, overwhelmingly and with strong support from President Clinton, passed the Religious Freedom Restoration Act of 1994, restoring a robust right of conscience. Unfortunately, in City of Boerne v. Flores, decided in 1997, the Court held that Congress had exceeded it powers, effectively leaving Obama free to disregard religious conscience in his health care initiative.
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With the growth of government, religious conscience will likely continue to fall victim to these so-called general laws. It isn’t hard to predict that government will eventually extend its regulatory tentacles into private faith-based education, health care, and even social services.
This conflict over religious freedom and the reach of government is not new. George Mason and James Madison disagreed over the scope of the right of religious conscience when Virginia was adopting a declaration of rights.
Mason and Madison both acknowledged that religion is a duty owed our Creator. Mason, however, believed that while religious conscience “should enjoy the fullest toleration,” government was free to regulate conscience if it “disturb[ed] the peace, the happiness, or safety of society.”
Alarmed that Mason had transformed the most sacred of rights into a mere privilege granted by tolerant lawmakers, Madison responded that free exercise could only be limited when the exercise of that right deprived another of an “equal liberty” and when that exercise of conscience “manifestly endangered” the “existence of the state.”
For Mason, like Obama and Scalia, religious exercise was a privilege at the mercy of government. Madison, however, saw it as an inalienable right largely beyond the reach of government. Madison’s view became the basis for our First Amendment.
Madison understood what Scalia and Obama evidently do not, that conscience is our most significant possession.
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Dr. Martin Luther King, Jr., had an experience during the early stages of the civil rights movement that demonstrated the importance of the right of conscience.
One night, Dr. King received a vicious call threatening his family. As he worried about his family, he realized “religion had to become real...[he] had to know God for [himself].” He prayed, “Lord, I’m down here trying to do what’s right.... I think the cause we represent is right. But Lord...I’m losing my courage. And I can’t let the people see me like this because if they see me weak...they will begin to get weak.”
King heard an inner voice saying, “Martin Luther, stand up for righteousness. Stand up for justice. Stand up for truth. And lo I will be with you, even until the end of the world.” He was “called” to lead a movement that transformed America.
Recognizing the importance of conscience King taught that, “If you haven’t found something worth dying for, you aren’t fit to be living.”
Madison would see Dr. King’s religious conscience as a right, not a mere gift from an occasionally tolerant government. It seems that Obama would have us believe that he would recognize it as a right as well, but his actions indicate he may not.
If Obama, Scalia, and others continue their overreach and disregard for this fundamental right of conscience, religious freedom in America will remain insecure. If Obama genuinely supports religious liberty, he can step forward and offer his support for an amendment adopting the language of the Religious Freedom Restoration Act of 1994.
That amendment would restore religious liberty by requiring that the government prove that its regulation of religious exercise is necessary to a compelling state interest. The amendment would also require the government to prove that the regulation is the least restrictive manner in which the government’s compelling interest can be achieved.
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That amendment would recognize that religious liberty is not a mere privilege. It would restore our most sacred possession – the right of religious conscience.
Rodney K. Smith is a First Amendment scholar who serves as a distinguished professor of law at the Thomas Jefferson School of Law in San Diego, Calif.
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