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 \u201cthe most sacred of all property\u201d \u2013 our greatest possession. <\/p>\n
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. <\/p>\n
The Obama administration narrowly averted a major political crisis when it later agreed to \u201cbalance\u201d 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. <\/p>\n
What is clear is that Mr. Obama had the power \u2013 and still does \u2013 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? <\/p>\n
OPINION: 8 ways to find common ground <\/p>\n
Perhaps, but the trend away from religious freedom has been under attack long before the Obama decision. <\/p>\n
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. <\/p>\n
With his ruling, Mr. Scalia rejected past Court precedent that provided stronger protection for the right of religious conscience \u2013 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 \u201cmake 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.\u201d <\/p>\n
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. <\/p>\n
The response to Scalia\u2019s 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. <\/p>\n
THE MONITOR'S VIEW: The Obama birth-control mandate <\/p>\n
With the growth of government, religious conscience will likely continue to fall victim to these so-called general laws. It isn\u2019t hard to predict that government will eventually extend its regulatory tentacles into private faith-based education, health care, and even social services. <\/p>\n
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. <\/p>\n
Mason and Madison both acknowledged that religion is a duty owed our Creator. Mason, however, believed that while religious conscience \u201cshould enjoy the fullest toleration,\u201d government was free to regulate conscience if it \u201cdisturb[ed] the peace, the happiness, or safety of society.\u201d <\/p>\n
Alarmed that Mason had transformed the most sacred of rights into a mere privilege granted by tolerant lawmakers, Madison responded that free exercise could only be limited when the exercise of that right deprived another of an \u201cequal liberty\u201d and when that exercise of conscience \u201cmanifestly endangered\u201d the \u201cexistence of the state.\u201d <\/p>\n
For Mason, like Obama and Scalia, religious exercise was a privilege at the mercy of government. Madison, however, saw it as an inalienable right largely beyond the reach of government. Madison\u2019s view became the basis for our First Amendment. <\/p>\n
Madison understood what Scalia and Obama evidently do not, that conscience is our most significant possession. <\/p>\n
THE MONITOR'S VIEW: Supreme Court's historic but unfinished ruling for religious liberty <\/p>\n
Dr. Martin Luther King, Jr., had an experience during the early stages of the civil rights movement that demonstrated the importance of the right of conscience. <\/p>\n
One night, Dr. King received a vicious call threatening his family. As he worried about his family, he realized \u201creligion had to become real...[he] had to know God for [himself].\u201d He prayed, \u201cLord, I\u2019m down here trying to do what\u2019s right.... I think the cause we represent is right. But Lord...I\u2019m losing my courage. And I can\u2019t let the people see me like this because if they see me weak...they will begin to get weak.\u201d <\/p>\n
King heard an inner voice saying, \u201cMartin Luther, stand up for righteousness. Stand up for justice. Stand up for truth. And lo I will be with you, even until the end of the world.\u201d He was \u201ccalled\u201d to lead a movement that transformed America. <\/p>\n
Recognizing the importance of conscience King taught that, \u201cIf you haven\u2019t found something worth dying for, you aren\u2019t fit to be living.\u201d <\/p>\n
Madison would see Dr. King\u2019s religious conscience as a right, not a mere gift from an occasionally tolerant government. It seems that Obama would have us believe that he would recognize it as a right as well, but his actions indicate he may not. <\/p>\n
If Obama, Scalia, and others continue their overreach and disregard for this fundamental right of conscience, religious freedom in America will remain insecure. If Obama genuinely supports religious liberty, he can step forward and offer his support for an amendment adopting the language of the Religious Freedom Restoration Act of 1994. <\/p>\n
That amendment would restore religious liberty by requiring that the government prove that its regulation of religious exercise is necessary to a compelling state interest. The amendment would also require the government to prove that the regulation is the least restrictive manner in which the government\u2019s compelling interest can be achieved. <\/p>\n
OPINION: 5 standards for presidential leadership <\/p>\n
That amendment would recognize that religious liberty is not a mere privilege. It would restore our most sacred possession \u2013 the right of religious conscience. <\/p>\n
Rodney K. Smith is a First Amendment scholar who serves as a distinguished professor of law at the Thomas Jefferson School of Law in San Diego, Calif. <\/p>\n
Sign up for our weekly Opinion and Commentary newsletter (every Thursday). You can also add Commentary to your daily Monitor newsletter. <\/p>\n<\/p>\n
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\nDoes Obama really care about religious freedom in America?<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"