In 1785, a bill proposing a tax expenditure for Christian Teachers was opposed by the writer of the First Amendment. Today, even as such laws are commonplace, those who benefit from these expenditures seek to extend their purview to the spending habits of their employees. On what basis do they claim to have the right to do so? The First Amendment itself.
The particulars and context of the situation are fairly straightforward: the Little Sisters of the Poor (LSP) v. Burwell seeks to force taxpayers to fund health services for their own employees, who are to a significant extent already taxpayer funded. Having already won the ability to avoid paying into the healthcare fund, the tax exempt LSP organization asserts that even signing the voucher to opt out violates their right of religious exercise by providing other sources of payment for these services, making them, they argue, complicit in the procurement of contraceptives.
In doing so, they oppose the logic at the core of the First Amendment itself. James Madison, its author, drew on several sources for inspiration, one of whom was John Locke, who said:
Nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion.
We have already proved that the care of souls does not belong to the magistrate. Not a magisterial care…But a charitable care…cannot be denied unto any man. The care, therefore, of every man’s soul belongs unto himself and is to be left unto himself. But what if he neglect the care of his soul? I answer: What if he neglect the care of his health or of his estate… Will the magistrate provide by an express law that such a one shall not become poor or sick? [ 1 ]
Another was Thomas Jefferson, a close confidant and friend of Madison’s, who established the Virginia Statute for Religious Freedom in 1777. He wrote:
Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. [ 2 ]
Here is Madison himself, in his pamphlet attacking the bill to fund Christian Teachers:
Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. [ 3 ]
Now bear in mind that the freedom of religious exercise clause, which Madison clearly indicates refers to preventing the government from forcing citizens to participate in a religious ceremony or organization they do not believe in, which he specifically buttresses as being necessarily distinct from civil law, is claimed by the LSP as the right to make the following demand:
Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners insurance companyaware that petitioners are not providing certain contraceptive coverage on religious groundswould separately notify petitioners employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners health plan. [ 4 ]
That is, they demand the special right of being entirely excluded from the law, of making no request for an opt-out, nor any payment for such specific services whatever, and further demanding that private insurance companies foot the bill for their religious opt out.
Consider that the premise of the case is that signing the voucher forces complicity on the LSP and their fellow litigants in the provision of birth control, and that they in this response explicitly demand the provision of these services by others. Consider as well that they argue the organization maintains an explicitly religious nature, which provides them standing to sue on the basis of the first amendment, but that they also accept government funding, as an expenditure, in the form of tax exemption. Their DC home for the elderly alone took in over $6,000,000 of donations in 2014 [ 5 ], which is neither taxed as income for the LSP, nor for the donors. They nevertheless intend on pitting an interpretation of the exercise clause which is wildly different from that of the Founders’ against the establishment clause.
In other words, the Little Sisters of the Poor vs. Burwell represents nothing so much as an attack on the Establishment clause and a redefinition of the Exercise clause in such a way as to ensure the special privileges from government the First Amendment was specifically written to prevent.
To my religious cousins, while I realize the internecine conflicts between Christian churches is much diminished in our age, have you considered the consequences of such a move in terms of other religions, not least of which is Islam?
To my atheist cousins, how can we remain true to our secular nature in light of these special rights for the religious, without allowing it to be said of us that we are a religion as well?
[ 1 ] http://www.constitution.org…
[ 2 ] https://en.wikipedia.org/wi…
[ 3 ] http://founders.archives.go…
[ 4 ] http://www.scotusblog.com/c…
[ 5 ] http://www.charitynavigator…
Originally posted here.