When the Framers were putting together the Constitution in Philadelphia in the summer of 1787, they knew the states would not adopt it without written guarantees that the new central government would respect natural rights.
The supporters of the Constitution promised political leaders in the states that the written guarantees would soon be added as amendments, and they were. By late 1791, the Bill of Rights was ratified and added to the new Constitution.
The purpose of the Bill of Rights was to assure all in America that their natural rights — areas of human choices for which a permission slip from the government cannot be required and in which the government cannot coerce compliance with its wishes — would not be impaired by the federal government. Since the ratification of the Fourteenth Amendment, the natural rights protected in the Bill of Rights generally have been insulated from interference by the states, as well.
All natural rights are of paramount importance to all persons. They are individualized personal gifts from the Creator and have been recognized as such in American law since Thomas Jefferson wrote in the Declaration of Independence that we are endowed with them by Him.
One of those rights guarantees the free exercise of religion. Indeed, the Free Exercise Clause in the First Amendment was written to ensure that the new government could not coerce persons to behave differently than their religious views informed their consciences, or punish them for not conforming to a government-mandated religious orthodoxy.
Generally, for almost 230 years, the federal government left us alone to choose freely our religious practices and to worship as we believe. Until now.
Today, the free exercise of religion is under attack by the government. When Congress enacted the Affordable Health Care Act — I prefer to call it Obamacare because it is President Obama’s brainchild, his signature legislation, and because there is nothing affordable about it — members of Congress must have known the law would impose obligations upon persons that would force them to engage in behavior in violation of their religious beliefs.
Obamacare, which has been upheld by the Supreme Court under a superficial and novel theory that permits the feds to regulate natural rights by taxing us when we do not do as they have commanded, requires all employers of 50 or more persons to obtain health insurance coverage for all of their employees that pays for birth control via contraception, sterilization and abortion.
The Little Sisters of the Poor are an order of Roman Catholic nuns who have taken vows of poverty, chastity and obedience. They operate nursing homes for those who cannot afford them and employ more than 50 persons. The sisters have objected to the requirement that they must pay for health insurance coverage that provides for birth control, as those payments directly violate Catholic teachings and beliefs.
In a pluralistic society, one would expect that the government would accommodate the sisters. In a free society in which everyone who works for the government takes an oath to uphold the Constitution, the feds have a legal obligation to accommodate them. In a political society in which many Catholics are Democrats who elected the Congress that gave us Obamacare, one would expect an accommodation. But we expect in vain, as the federal government has resisted the sisters mightily and asked the courts to turn down their pleas.
What is wrong with Obama that he would employ lawyers to do this?
For starters, he does not believe in natural rights. He accepts the perverse view — known as positivism — that our rights come not from God, but from the government. This is not an academic argument – as, in the president’s world, if the government is the source of freedom, then the government can restrict it. This is, of course, the opposite view from that of Judeo-Christian values, the Framers, the Constitution and American law; thus, it violates the oath of office the president took.
But just as troubling as his attitude about the origin of personal freedoms is the president’s attitude about the exercise of personal freedoms.
Throughout his presidency, he has taken the position that he, and he alone, possesses the power to dispense with the obligations of federal laws when they are too burdensome and even to ignore them. He has bombed other countries without congressional approval, spied on all Americans without lawful warrants specifying any of them, enforced environmental regulations that Congress declined to enact, and declined to enforce or delayed the onset of sections of Obamacare that offend his friends. He has done this for political reasons when his colleagues and supporters have asked it of him.
So, what about the nuns? Nuns who own no personal property, nuns who spend their lives ministering to the poor, nuns who will never have the need for contraceptive or sterilization or abortion services, nuns not involved in politics but deeply committed to well-formed consciences? Can he give them a break, too? In a word: No. His Department of (political) Justice has vigorously resisted the nuns and even mocked them. It has demanded that they assert in writing what their religious beliefs are and that they permit others to pay for the contraceptive, sterilization and abortion services they do not want, cannot use and profoundly condemn.
Our post-Obamacare world is dangerous for people informed by conscience and presupposing respect for natural rights. Where are the Catholic Democrats in Congress who voted for this monstrosity? Why are they silent or tacitly with the president? Where are all good people of conscience in this great clash between the nuns faithful to God and the president to politics?
If the government can tax you and me and selfless nuns for fidelity to long-held religious beliefs while exempting others because of their fleeting political beliefs, then the Free Exercise Clause of the First Amendment is meaningless. And our rights are in the hands of a congressionally enabled tyrant.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”
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