Constitution 201: Case Study—Religious Liberty in the Administrative State

By Stephen Zierak

This lesson is taught by Dr. Thomas West, the Paul & Dawn Potter Professor of Politics at Hillsdale College.  Dr. West has taught at Hillsdale since 2011, and from 1974-2011 at the University of Dallas.  His courses on American politics include the U.S. Constitution, civil rights, foreign policy, and the political thought of the American Founding.  He also teaches political philosophy, with a focus on Aquinas, Locke, and Hobbes.  Dr. West is a Senior Fellow at Claremont Institute, where he instructs in the Institute’s Publius and Lincoln fellows summer program.  He is the author of “Vindicating the Founders:  Race, Sex, Class, and Justice in the Origins of America.”  Dr. West received his BA from Cornell University, and his PhD from Claremont Graduate University.

The Founders believed religious liberty to be the most important single unalienable right because the most crucial outcome of life is the ultimate destiny of the soul, the relation between man and his conscientious understanding of God.  When government stands in the way, it is doing the very worst thing it can do.  The more common understanding in those times in almost all the nations was that government should oppose any religion not sanctioned by that government.  Even in the colonies, there were cases of religious repression.  In 1774, Baptists were imprisoned in Virginia for preaching their faith without a government issued license.  Situations like this offended the advocates of religious liberty, such as Jefferson and Madison.  When Virginia issued its own Declaration of Independence in 1776, protection of religious liberty was an important guarantee.

Fast forward to today.  Obamacare mandates that employees must be provided with health coverage that includes contraceptives, abortion pills, and sterilization.  Archbishop Dolan of the New York Catholic Church has called this requirement an unprecedented interference in freedom of conscience protected by the First Amendment.  Is that actually true?

The answer depends on your view of rights.  The Founders’ conception of religious liberty has two components.  The first is that every man should be free to worship in the way he thinks best, and should follow what he believes to be God’s laws in his daily life.  However, the second is that this freedom is limited; one may not disturb the public peace or interfere with others in their worship.  So, Muslims are not free to commit violence against infidels, and Aztecs are not free to sacrifice human beings in religious ceremonies.

Moreover, no one has the right to incite crime under a claim of religious freedom.  And every man must perform the social duties required by the social compact under which he lives.  One responsibility of all citizens, according to the Founders, is participation in the common defense.  The social compact requires that all obey laws established to secure the rights of all (requirements in defense of those rights).  Opting out of that social compact is not permitted.  So, when the Quakers complained to George Washington that their religion forbade them from taking up arms in defense of the Republic, Washington responded that such a refusal to fight would violate the social compact required for the protection of all rights, and would subject them to punishment.  He struck a more conciliatory tone in his personal hope that the conscientious scruples of all men be treated carefully and delicately, that there should be due regard accommodations as the protection of essential interests of the nation might permit.  However, if Quakers were to be relieved of the duty to defend the nation, this would have to be done as a favor, not a right, and be enacted by Congress.

So when the New York Times editorializes that churches not be allowed opt out from laws such as Obamacare, is that merely a reflection of the Founders’ understanding of the limits of religious liberty?  Not really.

For the Founders, government exists only to secure the natural rights of the people:  the protection of life, liberty, and private property.  The federal government protects primarily against internal and external attack, and regulates foreign and interstate trade.  The states establish a criminal law to punish transgressions of force and fraud; a civil law to define property, contract, and minor injuries; a family law to define marriage and the duties of family members; a safety net of minimal help to indigents unassisted by family or civil society; and the minimal moral standards required for a healthy society.   Beyond these tasks the government leaves people alone to make their own decisions, and their own way.  Liberty, including religious liberty, in practice meant to the Founders a people free to organize their affairs as they see fit.  Most of the business of society is left to self-governing private associations, whether business, church, or civic.  Churches have the right to govern themselves as they see fit, just as with any other private association, as long as they do not violate criminal or civil law, or basic moral requirements.

Section XXXIII of the Constitution of Maryland (ratified November 11, 1776) expresses these ideas:  “That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him;…unless, under color of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights;…”   Under the Founders’ understanding, any private association, religious or not, could hire, fire, associate, deal with whomever it desired.  It could set the terms of any employment.  It could practice what today we term “bigotry” in its capacity as a private organization.  So, if a religious institution, or any institution, wants to employ or serve people with similar values, that is totally up to its own private decisions, not a matter for government intervention.  It is also able to set terms of employment and compensation with no government oversight.  Tolerance meant to the Founders not restriction of discriminatory conditions, but rather the freedom of private associations to chart their own courses—as long as there are no violations of the essential natural rights protected by a limited government and by the people themselves.

When Archbishop Dolan called Obamacare an “unprecedented incursion” into freedom of conscience, where exactly had he and his church been for the past one hundred years, and particularly the past fifty years?  Had he somehow missed all the many incursions into freedom of conscience and into freedom of association that have been at the heart of the Progressive challenge?  (Some of them actually sponsored by religious organizations such as the Catholic Church.)  Even the contraception mandate is nothing new.  The state of New York, among other states, has required contraceptive coverage in health care plans for many years now.

When the Progressives distinguished positive freedom from negative freedom, religious freedom was one of those outmoded negative freedoms the Founders had emphasized.  More important were the positive freedoms that removed burdens from necessitous men.  Far beyond the Founders’ minimal safety net, positive freedom would provide equal access to the sources of a comfortable life.  Government must give things to people by taking the resources of other people.  There should be far less focus on criminal and civil law, on the protection of life, liberty, and property, and much more focus on spreading the wealth around—as President Obama might say.  Under this theory of government, private associations can no longer be treated as if they were really private.  Progressives have been imposing mandates on businesses, and churches, and civic organizations for the past century.

As the post-1965 New Progressives came onto the scene, they held onto wealth redistribution, but took Progressivism in directions even more threatening to religious liberty (and all other forms of what the Founders considered liberty).  No longer viewing our civilization as superior, the New Progressives found moral superiority in racial and sexual “victim” groups.  Special programs were targeted towards them, including non-discrimination policies in the work place, government hiring preferences, and the denigration of boys/men as suspect by the schools.  In such a context, the idea of “private association” became not only outmoded, but threatening.  Sexual self-expression became the most fundamental freedom, and government adopted policies to promote sex outside the family.  If sexual freedom is so basic a right that government must fund it, then violations of government policy in this realm become just as problematic as Washington’s concern over the defense of the nation.   At least to the New Progressives.  Biocentric environmentalism emerged as the new secular religion, holding subhuman life more worthy of protection than human life.

As governments mount ever more interferences in the conduct of private associations, free exercise of religion is increasingly constrained.  Churches, and especially any religiously based enterprises, are increasingly subject to controls over who may be included and excluded in employment and services rendered.  A private Jewish university is forced to allow same sex couples in the married students’ dorm.  A private Christian school is sued after two lesbians are expelled.  Catholic Charities in Boston shuts down its adoption services because it was being told to consider homosexual couples for placements.  A psychologist in Mississippi loses her case in court over whether she could refuse to counsel a lesbian couple.  A New Mexico photographer is fined $6,600 because he refused to photograph a same sex wedding.  Some cases have held that employer expressions of religious beliefs in the workplace constitute religious “harassment.”  There have been similar cases involving employees who have brought religion into the work place.  The Supreme Court has ruled that students do not abandon their free speech rights when they enter the schoolhouse door, but free exercise of religion is often barred from work places, schools, and even churches themselves.  There is a clear conflict between religious liberty as the Founders defined it, and the modern (so-called) civil rights laws.

How did the Founders view government support of religion?  Most believed that no man should be compelled to attend or support any religious institution contrary to his own beliefs.  The Establishment Clause meant that no taxpayer money should be used to support any religious institution or ministry.  However, all the Founders (even Jefferson and Madison, the most committed to religious freedom) believed in generalized support of religious sentiments.  Here is what Jefferson wrote in “Notes on the State of Virginia,” in 1781:  “And can the liberty of a nation be thought secure when we have removed the only firm basis, a conviction in the minds of the people that their liberties are a gift of God?  That they are not to be violated but with His wrath?”   And Washington had this to say in his Farewell Address of 1796:  “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports….And let us with caution indulge the supposition, that morality can be maintained without religion.  Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle….Virtue or morality is a necessary spring of popular government.”

Generic Christianity was thought to be helpful to liberty.  The virtues of the Ten Commandments were considered necessary for the survival of free government.  Earlier Progressives also supported Christianity, especially its more progressive versions which they eagerly promoted.  Up until the 1960’s religious sentiments were ubiquitous in the public schools.  Prayer began the day, Bible verses were read, and religious songs were sung, especially at Christmas and Easter.

The New Progressives turned against Christianity.  In 1963, the Supreme Court ruled by a vote of 8 to 1  in Abington (PA) School District v Schempp that school sponsored Bible readings violates the Establishment Clause.  This would have been news to the Founders who wrote it.  Justice Brennan in his concurrence explained quite frankly what was going on.  The original meaning of the Establishment Clause should be ignored because the function of the public school is “training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort.”  He went on to note that the Constitution allowed private schools, but the “choice which is thus preserved is between a public secular education with its uniquely democratic values, and some form of private sectarian education which offers values of its own.”  Brennan was in essence saying that Christian education is not democratic, but rather divisive and separatist.  Why would a well-educated, intelligent jurist like Brennan hold such a belief?  The Ten Commandments prohibit stealing (and therefore support the value of private property) and adultery (and therefore support the value of marriage).  The New Progressives, with such as Brennan at their vanguard, were hostile to private property and supportive to sexual “liberation.”  The Court ended up inventing Constitutional rights to pornography, abortion, contraception, and easy access to contraception for the unmarried.  New Progressives consider religion problematic unless it adopts New Progressivism—as many main line Christian religions and Reform Judaism have done.   Celebration of private property and discouragement of non-marital sex and homosexuality are seen as attacks on the values of New Progressivism.

Opposition to adultery, or to sex outside marriage, or to no fault divorce is now defined as a “war on women.”  How can women be free if they are stuck in an unsatisfying marriage?  Or if the government doesn’t provide free contraception and free abortion?  So, the New Progressives wage war on the family.  They teach young girls there is nothing noble in becoming a wife and mother.  Government funded women’s centers are strong advocates for divorce.  The law gives women motives for divorce by awarding them child custody and child support.  Women are encouraged and praised as they undertake roles better done by men.  Girls in school are taught that adulthood means a career of one’s own and sexual independence; and that marriage is merely one option among many.

New Progressive dedication to non-Western cultures means public praise, including in the schools, for non-Western religions.  Christianity is out of fashion because it is the religion of the West and of white people.  Indian religious rites and Muslim religious beliefs are treated with great sensitivity.  Many schools have eagerly provided accommodations for Muslim students, such as prayers during the school day, and even special prayer rooms.  Christian students have not been allowed similar privileges.  There is study about religious and other customs of non-Christians, but not of Christians.

Today, we have complete religious liberty—until we engage in any form of commerce or activity beyond religious services.  Obama sees his health care mandate as the regulation of the market place, not a denial of religious liberty.  Conservatives cheered when a 2012 Supreme Court case exempted ministers from application of civil rights laws, but missed the point that other employees were not so protected.  For the Founders the right of free association was paramount.  How did “civil rights” come to mean that we are not free to choose our own employees, associates, or clients on any basis we wish?  Or that the owner of a business is not free to share his religious beliefs with his employees?  Our focus on “non-discrimination” has led us to forget that discrimination is what we do every day in matters most central to our lives.  Without the ability to discriminate, we have no religious freedom—or any other kind of freedom.

People don’t think clearly about this issue, the conflict of liberty and so-called “civil rights.”  Liberty in the Founders’ sense cannot exist where a powerful government routinely intervenes in the activities of private associations.  Those who try to promote religious liberty, or any other kind of Founders’ liberty, while they accept the Progressive definition of rights, are engaged in a fool’s errand.

Stephen Zierak, CPCU/ARM, graduated from Boston University with a BA in Political Science in 1969.  After a forty year career in property casualty insurance underwriting, Mr. Zierak retired as a Vice President of Swiss Re America in 2010.  At that time, he relocated to Hawaii, a move he had always wanted to make, but had delayed due to lack of appropriate professional opportunities here.  Mr. Zierak plans to continue his studies in Political Science, never really abandoned even during his professional career, and to write on matters of public policy.  Recently, he produced for Grassroot Institute summaries of Hillsdale’s ten part internet course on our Constitution.  Stephen Zierak is married to the love his life, Teodora, and they reside in Honolulu.

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