In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently upheld the right of religious conscience. The justices held that the Religious Freedom Restoration Act protects the Green family’s sincere religious beliefs that they should not have to provide the morning-after pill (abortifacients) to their employees.
James Madison, the most ardent supporter of the right of religious conscience in our nation’s history and the primary author of the First Amendment and the Bill of Rights, would generally be pleased. However, he would surely worry over the slimness of the margin by which the Court upheld the right and would be legitimately concerned that the American public does not understand the importance of the right of conscience.
A review of the principles that motivated Madison and the framers to protect the right of religious conscience can help us better understand the value of the right. Shortly after passage of the First Amendment, Madison declared the right of conscience to be “the most sacred of all property.”
Samuel Johnson’s dictionary, which was widely used in the 18th century, defined “sacred” as “relating to God” and “inviolable.” Madison understood that the relationship between a person and God is a sacred space that should remain beyond the reach of government. He believed that requiring a person to violate his or her religious conscience does irreparable harm to the individual and government.
The Hobby Lobby case is instructive. The owners, the Green family, were willing to provide 16 of the 20 forms of contraceptive services mandated under the Affordable Care Act. To provide the other four forms of contraceptive services, which are used after conception (abortifacients), would for the Greens be tantamount to murder, a violation of their sacred duty to God. That duty defines who they are.
The cost to the government of providing those four abortifacients to a few employees will be low. The cost of violating their conscience, on the other hand, would be high for the Greens. A government that refuses to recognize such rights, when the cost to the government is so low, is neither just nor legitimate.
The Obama administration also argued that closely held corporations were not entitled to exercise religious rights. The government essentially argued that the Green family should live a compartmentalized ethic — their religious conscience could be exercised in their home but not in the workplace.
Compartmentalized ethics invariably lead to no ethics at all. Clayton Christensen of the Harvard Business School faculty emphasizes, “The boundary — your personal moral line — is powerful because you don't cross it; if you have justified doing it once, there's nothing to stop you doing it again.”
Madison and the founding generation understood that our nation’s survival depends on a moral, religious and ethical people. For government to require an individual to cross the most sacred of moral lines surely weakens the very fabric of society. To recognize their rights strengthens the government.
The administration also argued that it was furthering the rights of women employees. In the past few decades, we have seen much-needed legislative and related gains protecting women in the workplace. Sensitivity to the rights of women is a laudatory objective. The Court, however, recognized that government can simply supply women with access to the morning-after pill. The cost will be minimal.
At the same time, religious women will be free to exercise their religious conscience. According to a Pew survey, “Men are significantly more likely than women to claim no religious affiliation. Nearly one-in-five men say they have no formal religious affiliation, compared with roughly 13% of women.” The right of conscience is valued by almost 9 out of 10 women, a number far larger than the number seeking the morning-after pill.
Madison and the framing generation also provided for a wise division of power as to religious matters. Government was not permitted to infringe on the free-exercise rights of its citizenry. On the other hand, under the establishment clause, no religion could ever claim the government as its own.
As we watch the turmoil unfolding in Iraq, where two sects of Islam fight for control of their government, we are reminded of the wisdom of the authors of the Bill of Rights. In our country we would let members of each sect freely exercise their religion, but neither sect would be permitted to obtain control of the government.
If we protect religious liberty, our children will grow up in a world where their most sacred property is respected by their government. They also need not fear that any religious sect will claim control of their government. The Court wisely reaffirmed that world and we have a special reason to celebrate this Fourth of July.
Rodney K. Smith is the former president of Southern Virginia University, a faith-based institution, and currently serves as a Professor of Practice at the Sandra Day O’Connor College of Law at Arizona State University.
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