by Quin Hillyer
In light of the ongoing controversy about Department of Health and Human Services regulations requiring almost all employers to provide insurance coverage that includes full payment for prescriptive contraceptives, sterilization, and abortion-inducing drugs, a little history might be enlightening.
Some people, not unreasonably at first glance, ask why this is such a big deal. It's a simple health issue, they say. Nobody is forcing people to get abortions against their own will. And if a law created through the ordinary means of representative government calls for such insurance coverage, well, then, isn't that what democracy is all about? In other words, if opponents of the "HHS mandate" want to change things, they merely need to go win some elections. As long as the government tolerates churches themselves refusing to provide such insurance, why should the other institutions - Baptist hospitals, Catholic schools, etcetera - complain? If they aren't churches, they don't merit special consideration ... do they?
This whole train of thought, however, is wrong. Or at least it's wrong in terms of American tradition, American law, and the entire political theory deriving from the enlightened theory of the God-given natural rights of man.
First, it should be understood that the Judeo-Christian tradition itself is largely responsible for the recognition that men as individuals are valued, and have rights, completely apart from their status as subjects to a king or government. As journalist/historian M. Stanton Evans fully explained in a book called The Theme is Freedom, the God we know and love was recognized, uniquely by Jews and Christians, as loving us as individuals made in his own image and likeness. Spiritually subject to God alone, we therefore have dignity and individual rights subject to no emperor, king, or oligarchy.
It was 798 years ago, in the famous Magna Carta wherein an English king acknowledged these rights of freeman and his own subjection to the higher law, that religious liberty was specifically listed as both the first and the last (63rd) item in the litany of rights to be observed "in all respects and in all places forever."
The particularly American emphasis on this liberty has been evident from the start of English settlements of the New World - first with the Pilgrims, who came explicitly to find religious freedom, and subsequently in Pennsylvania (founded for equivalent liberty for Quakers) and Rhode Island (for Baptists).
In 1776, as the Continental Congress wrestled with calls for a Declaration of Independence, a Virginia assembly was debating that state's own "Declaration of Rights." In it, primary author George Mason proposed to generously recognize religious liberty by writing that all sorts of religious practice, not just official Anglicanism, should be "tolerated" by the state. But delegate James Madison, all of 25 years old, objected that this wording wasn't a strong enough protection for free religious exercise. He argued that a state that could "tolerate" all religions was still a state that considered itself the font of rights, to be doled out (or "tolerated") at the state's own discretion. Madison argued that this was a misunderstanding of religious rights. He said the rights were not granted by government, but existed independently of government. Free religious practice therefore was not something to be tolerated, but something to which individuals were "entitled" as a human right that superseded the power of government itself.
Mason and his colleagues recognized that Madison was right, and changed the language accordingly: "....all men are equally entitled to the free exercise of religion, according to the dictates of conscience...."
It was this same understanding - a pre-existing entitlement or right, not a mere toleration - that Madison applied 13 years later when drafting what became our First Amendment, including the clause that no law should be made "prohibiting the free exercise" of religion.
Madison's mentor and dear friend Thomas Jefferson interpreted the amendment thusly (as he wrote in 1808, with my emphases added): "I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises... Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government...."
The problem with the HHS mandate is that the proposed rule puts the government in the business of deciding what does and doesn't qualify as being "religious" enough to be exempt from the mandate, with church-affiliated schools and charities (and the Salvation Army) not included in the list of those whose exceptions the government can tolerate.
Yet no fair-minded person could possibly suggest that a church-based social service doing its Christian duty of ministering to the poor - a health clinic, a soup kitchen, a housing-assistance program - is anything other than a "religious institution." In short, the HHS mandate precisely involves government "intermeddling with religious institutions" and those of "their doctrines" that hold as a central tenet the preservation of innocent human life.
James Madison obviously would not approve - and the courts, in applying the First Amendment that he drafted, should consider themselves duty-bound to invalidate the HHS power-grab, and to re-establish the supremacy of religious freedom.
About the Contributor
Quin Hillyer is a Senior Fellow for The Center for Individual Freedom, a Senior Editor for the American Spectator magazine, and a Writer-in-Residence at the University of Mobile. He has won mainstream awards for journalistic excellence at the local, state, regional and national levels. He has been published professionally in well over 50 publications, including the Wall Street Journal, the Washington Post, the Houston Chronicle, the San Francisco Chronicle, Investors Business Daily, National Review, the Weekly Standard, Human Events, and The New Republic Online. He is a former editorial writer and columnist for the Washington Times, the Washington Examiner, the Mobile Register, and the Arkansas Democrat-Gazette, and a former Managing Editor of Gambit Weekly in New Orleans. He has appeared dozens of times as a television analyst in Washington DC, Alabama, Arkansas, and Louisiana, and as a guest many hundreds of times on national and local radio shows.
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