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Does Obama really care about religious freedom in America?

Religious freedom in America is under attack from the right and the left. But the right of conscience is our greatest possession. If Obama genuinely supports religious liberty, he can offer his support for a constitutional amendment that would restore protection for religious rights.

By Rodney K. Smith / February 17, 2012

Archbishop of New York, Timothy Dolan, gestures during an interview at the North American College in Rome, Feb. 14. The top US bishop has vowed legislative and court challenges to President Obama's compromise on exempting religiously affiliated employers from paying directly for birth control for their workers. Mr. Dolan, who heads the US Conference of Catholic Bishops, said that Obama's about-face on the mandate initially sparked glimmers of hope but ended up being a 'hill of beans.'

Gregorio Borgia/AP Photo


San Diego, Calif.

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.

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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?

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.

THE MONITOR'S VIEW: The Obama birth-control mandate

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.


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