Can religious beliefs be forced on you? Can government decide which religious beliefs are “acceptable” and which are not? Of course not. But this is the crux of the “free exercise” debate ignited by the Obama administration’s recent new health care mandate that forces employers to provide “free” contraception, sterilization and abortifacients.
The issue is not one of good health — despite election-year efforts to frame it as such. If it were only about good health, government would have long ago outlawed smoking, mandated daily vitamins and forced employers to provide gym memberships. The issue is not even “free” contraception. If it were, a member of Congress with an elastic view of the Commerce Clause would have long ago introduced a bill providing it to the public for “free” — whatever that means.
The real issues are whether the First Amendment is broad enough to include beliefs with which we disagree, and whether government can tacitly or otherwise force us to abandon our religious beliefs simply because something constitutes sound public policy.
A debate over sound public policy never can be substituted for constitutional consistency. If government action affects religious liberty, the government must (1) provide a compelling reason for the encroachment on free exercise and (2) prove the action used is the least restrictive means available.
When a state required — in the interest of an educated citizenry — all students to stay in school until a certain age, a religious group objected because it violated their religious beliefs. And the Supreme Court agreed with the religious group.
When a state attempted to ensure a loyal citizenry by requiring students to pledge allegiance to the American flag, a religious group objected because it violated their beliefs. And the Supreme Court agreed with the religious group.
When a state decided to outlaw animal sacrifice, a religious group objected because it prevented them from performing a specific ritual. And the Supreme Court agreed with the religious group.
When a state decided to require uniform license tags for motor vehicles, a religious group objected because it didn’t agree with the language used on the license tag. And the Supreme Court agreed with the religious group.
When a religious group fired a minister, the Obama administration objected and claimed it was a violation of employment law. The Supreme Court, in a rare 9-0 opinion, agreed with the religious group that the government does not get to pick ministers for churches.
In the instances above, it is nearly inarguable that goals such as an educated citizenry, loyalty to state, the prevention of animal sacrifice and the avoidance of employment discrimination are laudable — perhaps even compelling — government interests.
Yet in each case, the court sided with the religious organization because the Free Exercise Clause in the First Amendment doesn’t protect just commonly held religious beliefs. Instead, our system is calculated to protect the few against the many, the unpopular against the popular and the politically disenfranchised from those on the seat of power.
Government cannot dictate the religious beliefs of its citizenry or impede the free exercise of those beliefs. It can on occasion regulate conduct but not beliefs.
For example, if a religious group does not allow children to see doctors for medical aid, the state can legitimately intervene and provide the medical care needed. But the state cannot force the religious members to change their beliefs, provide the care themselves or pay for it.
Today, it is the Catholic Church, to which I do not belong, and its beliefs with respect to contraception, which I do not share, that are threatened by government action.
But what will it be tomorrow? Will churches be required to hire female priests and male women’s outreach ministers because we object to discrimination on the basis of gender? Can the government require you to eat certain healthful foods because it has a compelling interest in a healthy citizenry? If not, why not?
If the government need only concern itself with the underlying motives, science or good intentions behind a policy, why could the government not force its will on these and other issues without concern for the ramifications on religious groups or other segments of our citizenry?
The Obama administration offered an “accommodation” before eventually promulgating exactly the same rule that spurred the controversy. Regardless, an “accommodation” is not adequate when it comes to religious freedom.
It is not the role of an administration to merely accommodate the religious beliefs of the citizenry. If this administration thinks “free” contraception is a worthwhile public policy to pursue, then pursue it. But do not require those with different religious beliefs to surrender those beliefs directly or indirectly.
Rep. Trey Gowdy (R-S.C.) is a member of the House Judiciary Committee, the Oversight and Government Reform Committee and the Education and the Workforce Committee. He is a former state and federal prosecutor. This post first appeared at politico.com.