Tag: First Amendment

Good Reading: Robert George on Marriage and Religious Liberty

~ Evan Lenow

Robert George, McCormick Professor of Jurisprudence at Princeton University, offers an insightful look at the tension between religious liberty and the redefinition of marriage. Here are a couple of highlights:

It was only yesterday, was it not, that we were being assured that the redefinition of marriage to include same-sex partnerships would have no impact on persons and institutions that hold to the traditional view of marriage as a conjugal union? Such persons and institutions would simply be untouched by the change. It won’t affect your marriage or your life, we were told, if the law recognizes Henry and Herman or Sally and Sheila as “married.”

Those offering these assurances were also claiming that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership. No one, they insisted, wanted to alter those traditional marital norms. On the contrary, the redefinition of marriage would promote and spread those norms more broadly.

George then shows how those “assurances” were false and questions why those supporting traditional marriage ever bought into such assurances. He continues:

I must say, though, that I still can’t fathom why anybody believed any of it—even then. The whole argument was and is that the idea of marriage as the union of husband and wife lacks a rational basis and amounts to nothing more than “bigotry.” Therefore, no reasonable person of goodwill can dissent from the liberal position on sex and marriage, any more than a reasonable person of goodwill could support racial segregation and subordination. And this, because marriage, according to the redefiners, consists principally of the emotional union of people committed to mutual affection and care. Any distinctions beyond this one they condemn as baseless.

Since most liberals and even some conservatives, it seems, apparently have no understanding at all of the conjugal conception of marriage as a one-flesh union—not even enough of a grasp to consciously consider and reject it—they uncritically conceive marriage as sexual-romantic domestic partnership, as if it just couldn’t possibly be anything else. This is despite the fact that the conjugal conception has historically been embodied in our marriage laws, and explains their content (not just the requirement of spousal sexual complementarity, but also rules concerning consummation and annulability, norms of monogamy and sexual exclusivity, and the pledge of permanence of commitment) in ways that the sexual-romantic domestic partnership conception simply cannot. Still, having adopted the sexual-romantic domestic partnership idea, and seeing no alternative possible conception of marriage, they assume—and it is just that, an assumption, and a gratuitous one—that no actual reason exists for regarding sexual reproductive complementarity as integral to marriage. After all, two men or two women can have a romantic interest in each other, live together in a sexual partnership, care for each other, and so forth. So why can’t they be married? Those who think otherwise, having no rational basis, discriminate invidiously. By the same token, if two men or two women can be married, why can’t three or more people, irrespective of sex, in polyamorous “triads,” “quadrads,” etc.? Since no reason supports the idea of marriage as a male-female union or a partnership of two persons and not more, the motive of those insisting on these other “traditional” norms must also be a dark and irrational one.

This article is worth your time, especially in light of the current public discussion of Chick-fil-a’s support of traditional marriage. George lends credence to the Cathy family’s stance but explains why they are taking a beating in the media and social “elite.”

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Robert P. George, “Marriage, Religious Liberty, and the ‘Grand Bargain,'” The Public Discourse, July 19, 2012.

Can an Unjust Law Be a Law at All?: The Contraceptive Mandate

~ Evan Lenow ~ 1 Comment

I have previously written about the Health and Human Services guideline to the Affordable Care Act (aka, ObamaCare) that will require religious institutions to provide all FDA-approved contraceptives to their employees at no charge through their group health insurance plans. I believe that such a mandate violates religious liberty and freedom of conscience that is guaranteed protection under the First Amendment of the Constitution.

Today the United States Senate voted to table the Blunt Amendment which would have protected those who object to this new insurance mandate. The vote was predictably along party lines with all but one Republican favoring the amendment and all but three Democrats opposing the amendment.

As this new mandate proceeds to take the form of law, we need to ask the questions:

Is this law unjust?

Can an unjust law be a law at all?

In relation to the justice of this law, I have previously argued that it violates the freedom of religion granted by the First Amendment. In addition, I believe this law is unjust because it violates God’s eternal law of protection of innocent life. We see in Genesis 1:27 that human beings are created in the image of God. Thus, the inherent value of humans begins at conception. Any attempt to end life after conception (e.g., Plan B, Ella, abortion, etc.) is a violation of the eternal law of God.

Thomas Aquinas gives us a good historical perspective from which to evaluate the justice of human law. Aquinas writes:

Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived. . . . On the other hand laws may be unjust in two ways: first, by being contrary to human good . . . either in respect of the end . . . ; or in respect to the author, as when a man makes a law that goes beyond the power committed to him;—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. . . . Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing idolatry, or to anything contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, we ought to obey God rather than men.

If we look at this mandate through a Thomistic lens, the contraception requirement is unjust on both levels. It is contrary to the human good because it goes beyond the power granted to the federal government and imposes an unequal burden on society. The Constitution does not grant the federal government the power to require purchase of health insurance nor to tell health insurance plans what must be offered and for how much money. Those with religious convictions against such birth control are burdened with violating their consciences. If no such mandate existed, those with no religious conviction against contraception could buy it on the open market. Those with convictions against it would not be unduly burdened.

Second, this mandate is opposed to the divine good because it violates the law of God to protect innocent human life. In Psalm 139:13–16, we read that God forms children in the womb, and He has planned our days before we are ever born. God is intimately involved in the creation of life from the very moment of conception. God values human life and calls upon us to protect it (Exodus 20:13).

That leads to the second question: Can an unjust law be a law at all? Turning to Aquinas again, he answers with a resounding “No!” Speaking of unjust laws, Aquinas writes, “The like are acts of violence rather than laws; because, as Augustine says, a law that is not just, seems to be no law at all.”

Believing this new mandate to be unjust and opposed to both the common good and divine good, I applaud Sen. Roy Blunt (R-MO) and his colleagues for attempting to protect religious liberty. Those 51 senators who voted to table the amendment, effectively killing it, should recognize they have violated the sacred trust of their office to govern justly for the American people. We should strive for just laws enacted by our government and condemn unjust laws that are in fact no law at all.

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Tom Cohen and Dan Merica, “Senate kills controversial ‘conscience’ amendment,” CNN, March 1, 2012.

Thomas Aquinas, Summa Theologica, I–II.96.4.

My previous articles on this issue include: ObamaCare and the First Amendment and To Mr. Obama, From a Conscientious Objector.

To Mr. Obama, From a Conscientious Objector

~ Evan Lenow ~ 6 Comments

Dear Mr. President:

In recent weeks, a decision by your Administration has stirred great controversy among people of faith regarding the requirement that insurance policies offer free access to all FDA-approved contraceptives and sterilization. On the basis of the freedom of religion guaranteed to me as a citizen of the United States of America in the First Amendment of the Constitution, I want to state my conscientious objection to this policy.

First, the requirement of insurance policies to offer contraceptives to all people at no charge violates my religiously-held belief that life begins at conception. Among these contraceptives are drugs known to cause the elimination of a fetus after conception by preventing implantation of a fertilized egg in the uterine wall. Such drugs (e.g., Plan B, Ella) are more properly called birth control because contraceptives, strictly defined, prevent conception. These drugs act to prevent birth after conception. On the grounds of teaching in the Bible, I believe that all life begins at conception. In Psalm 139:13–16, we read that God forms children in the womb, and He has planned our days before we are ever born. God is intimately involved in the creation of life from the very moment of conception. In addition, Genesis 1:27 tells us that all humans are created in the image of God. The inherent value of God’s image begins at the moment human life begins—at conception.

Second, the requirement of insurance policies to offer contraceptives to all people at no charge makes me complicit in funding these abortifacient drugs. While you have offered exemptions to churches, I work at a religious school. It is debatable whether my school will meet the exemption standard. However, it is clear that the insurance program my school uses will be forced to comply. In the insurance business, it is an elementary principle that costs are passed along to the consumer through higher premiums. Even if the insurance companies have to “pay out of pocket” for those contraceptives (according to last week’s “compromise”), the burden will merely shift to the individual consumer—making us all complicit. This too violates my conscience and freedom of religion.

Third, the requirement of insurance policies to offer contraceptives to all people at no charge extends beyond the constitutional authority of the federal government. Insurance companies are businesses that are not owned by the federal government. Government has no constitutional authority to require business to offer a service at their own expense. In addition, the mandate of the Affordable Care Act that requires all individuals to have insurance extends beyond the constitutional authority of the federal government. In order to live and breathe in America, the government is attempting to force citizens to buy insurance. This is a gross abuse of power on the part of the federal government.

I humbly request that you rescind the current contraception regulation proposed by Secretary Sebelius and rescind the insurance mandate of the Affordable Care Act. These actions are a violation of your constitutional authority, and the contraceptive mandate is a violation of my guaranteed right to freedom of religion. I would like to remind you that the Bill of Rights was written “in order to prevent misconstruction or abuse of [the federal government’s] powers” (Preamble to the Bill of Rights). The current mandates are both a misconstruction and abuse of powers. The First Amendment trumps these mandates.

Please know that even today I have prayed for you and your Administration as instructed in 1 Timothy 2:1–2, which reads, “First of all, then, I urge that entreaties and prayers, petitions and thanksgivings, be made on behalf of all men, for kings and all who are in authority, so that we may lead a tranquil and quiet life in all godliness and dignity.” I pray for wisdom on your behalf to protect the consciences of the citizens over whom you have authority and to respect the teachings of Scripture which you claim to believe.

Sincerely,

Evan Lenow
Conscientious Objector

ObamaCare and the First Amendment

~ Evan Lenow

During the debates surrounding the adoption of the Constitution, it became clear that the people of the United States desired further protection from tyranny by the government. As a result, Congress drafted amendments to the Constitution that ensured certain rights could not be trampled by the government. The ten amendments that were passed came to be known as the Bill of Rights. The little-known preamble to the Bill of Rights reads:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

With such a desire to prevent misconstruction or abuse, the states adopted these amendments. Among them was an amendment granting religious liberty to the people. This first protection granted to the people states in part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .

This guarantee of religious liberty has prevented the government from establishing a state-sponsored religion or church and has protected the free exercise of religion in this country. With this protection has come the application of freedom of conscience on religious grounds. This has allowed Mennonites and other pacifists to object to service in the military during times of compulsory service through the draft. It has allowed doctors and pharmacists to object to issuing drugs or services that violated their religious beliefs.

Now freedom of religion and freedom of conscience face a new challenge—the Affordable Care Act (aka, ObamaCare). Under guidelines presented by Health and Human Services Secretary Kathleen Sebelius, organizations providing health insurance coverage for their employees will have to include coverage for all FDA-approved contraception at no charge to the participants. Such contraceptives include Plan B (the morning after pill), intra-uterine devices, and sterilization.

Religious organizations of all types have historically voiced opposition to some or all of these forms of contraception. In fact, Plan B and IUD’s are more properly labeled birth control rather than contraception because they prevent birth after conception rather than preventing conception in the first place.

Catholics have presented the most consistent stance against birth control throughout these debates. Their reaction to this ruling has been firm and unyielding. On the last Sunday of January, Catholic priests around the country read letters from bishops condemning the new regulations and calling on President Obama to reverse course. In the days that followed, the Obama administration attempted to strengthen its stance with no sign of wavering.

The Obama administration has offered some veiled exceptions to this guideline, but they are less than satisfactory to many people of faith. The specific exceptions read:

Group health plans sponsored by certain religious employers, and group health insurance coverage in connection with such plans, are exempt from the requirement to cover contraceptive services. A religious employer is one that:  (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii).  45 C.F.R. §147.130(a)(1)(iv)(B).

While these exceptions may benefit churches that provide healthcare plans to their employees, large religious organizations, such as schools, charities, etc, will be forced to provide contraception. Can you imagine Baptist liberal arts colleges being forced to provide Plan B to faculty and employees at no charge through their insurance programs? Can you imagine Catholic Charities offering insurance that allows their employees unlimited access to free contraception?

Secretary Sebelius responded to criticism in a USA Today opinion piece and noted three reasons for the requirement and the minimal exceptions. Her rationale is 1) almost all women use birth control at some point in their lives, but birth control is expensive; 2) churches get an exemption; and 3) 28 states require contraception coverage, and 8 of those states offer no exemptions.

In response to the first argument, it makes little logical sense. We could use the same argumentation to say that most Americans are overweight and would like to lose weight. Therefore, all FDA-approved methods of losing weight should be made available at no charge—fitness centers, lap band, gastric bypass, etc. In fact, the government ought to ban all unhealthy food using this argumentation.

The second argument demonstrates some concern for religious liberty on behalf of the administration. Unfortunately, they drew the lines too narrowly. In a Supreme Court case earlier this year, the high court unanimously upheld religious liberty protection for religious schools even if they taught subjects other than religion. The exemptions should apply to all religious organizations—churches, schools, charities, etc.

The third argument is misleading. Just over half the states require contraception coverage. This leaves 22 states that have no requirement. Of those 28 states, 20 offer broad exemptions. Of the 8 that offer no exemptions, 5 still provide a workaround for religious organizations. That leaves only 3 of 50 states that require contraception coverage with no exemptions. Those states are Oregon, New York, and California. Thus, the new federal regulation offers fewer exemptions that 47 of the 50 states.

This is more than just a contraception issue—it is a religious liberty issue. Schools and charities have been granted an extra year to reach compliance (conveniently after the presidential election). This federal regulation needs to be changed. Broader exemptions must be granted. No constitutional scholar could, in good faith, support this regulation. In fact, most high school students in an American Government class should be able to see through the veil of these federal guideline. This administration needs to go back and read the Bill of Rights “in order to prevent misconstruction or abuse of its powers.”

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Health Resources and Services Administration, “Women’s Preventative Services: Required Health Plan Coverage Guidelines,” U.S. Department of Health and Human Services.

Kathleen Sebelius, “Kathleen Sebelius: Contraception rule respects religion,” USA Today, February 5, 2012.

U.S. Department of Health and Human Services, “A statement by U. S. Department of Health and Human Services Secretary Kathleen Sebelius,” January 20, 2012.