Hobby Lobby and Religious Liberty
By Steve Byas
One would think lovers of liberty would have hailed the U.S. Supreme Court decision which sided with Hobby Lobby against the Obama Administration, upholding the right of closely-held corporations like Hobby Lobby to opt out of the government mandate that they provide abortion-causing contraceptives for their employees.Now, I am not talking about those who consider the greatest liberty the "right" to terminate a pregnancy (abortion). I am speaking of those who consider themselves libertarians, holding to the belief that it is wrong to initiate force against someone else. Of course, the ObamaCare mandate that Hobby Lobby provide abortion-causing drugs as part of any health care plan for their employees is certainly the federal government initiating force against the Green family, which owns the Hobby Lobby stores, along with Mardel's Christian and educational supply stores.
I should hasten to add that libertarians generally supported the ruling, which actually relied more on a federal statute (the Religious Freedom Restoration Act) enacted in 1993, more so than the First Amendment's prohibition on Congress passing of any law restricting religious liberty.
The objection is not that Hobby Lobby should have been forced to obey the government mandate to provide contraceptives, including those which cause abortion. The objection is that no employer should be forced to obey the mandate, even those who are not claiming a religious liberty exception. According to this viewpoint, the employers have a property right not to provide the medications, even if they hold no religious objection.
It is an interesting question, one that I considered myself a few years back. I thought, now why did the Founding Fathers specifically protect religious liberty in the first few words of the First Amendment? After all, it is true, that in the abstract, most religious liberty objections could be protected with simply recognizing that individuals simply have liberty.
Too bad it is not that simple.
In a way, one could ask the same question about the entire Bill of Rights. In fact, Alexander Hamilton and James Madison did ask the same question about the entire Bill of Rights. Hamilton and Madison argued that no Bill of Rights in the U.S. Constitution was needed, because it was well recognized that the federal government had no authority to restrict religious liberty, freedom of speech or the press, to restrict the ownership and use of arms, and so on. Again, in the abstract, they were correct.
However, Patrick Henry, George Mason, and others did not buy their argument. Henry and others believed that if certain express and explicit protections were not written into the basic law of the country, the day would come when some federal official would simply say something like, "I see nothing in the Constitution to stop the government from placing reasonable restrictions on religious liberty. After all, some of these religious nuts are just a problem."
Can you imagine what would have happened had the Second Amendment protection on the right to keep and bear arms not been inserted in the Bill of Rights? I think we would be more like England today than America today in respect to the right to keep and bear arms. The Supreme Court ruled 9-0 that law enforcement could not search a cell phone without a warrant, based on the protections of the Fourth Amendment. Without the Fourth Amendment, what would they have ruled? I shudder to wonder. Hey, Oklahoma County Sheriff John Whetsel wants to look at your cell phone anyway, despite the clear wording of the Fourth Amendment. Maybe he should apply for that sheriff's position in Nottingham.
As a person who has read loads of history, I cringe to think what would be the case if the federal government did not have to respect religious liberty. After reading about the Protestant Reformation in England and Scotland, I shake my head at how those in power really believed that all persons in their kingdoms should have to follow the religious views of the monarch. Take merry old England. Before Henry the Eighth decided he wanted Anne Boleyn for his second wife, he required strict adherence to the Roman Catholic Church. Then, everyone had to swear loyalty to the king over the pope. Then, after his death, Catholics were persecuted. Following the death of Edward the Sixth, his half-sister Mary oversaw the legalized murder of hundreds of Protestant Christians, including the former Archbishop of Canterbury, Thomas Cranmer, simply because they refused to support the restoration of Catholicism. Not too many years later, Catholics plotted to murder King James the First and all the members of Parliament, in order to free themselves from the suppression of their religious views and practices. Remember, remember the fifth of November and Guy Fawkes.
While some have misused the Christian faith to abuse liberty, that has not generally been the case in America. As Alexis de Tocqueville said in 1831, "The Americans combine the notions of Christianity and liberty so intimately in their minds that is impossible to make them conceive the one without the other." Jedidiah Morse said, "To the kindly influence of Christianity we owe that degree of civil freedom, and political and social happiness, which mankind now enjoys . . . Whenever the pillars of Christianity shall be overthrown, our present republican forms of government -- and all blessings which flow from them -- must fall with them."
There is no question that the spread of Christianity is linked with the spread of human freedom, but only so long as its influence is in persuasion, not in legal requirements. The purpose of Christianity is to change hearts and minds. Changes in the law naturally follow. That is not the case with Islam, which has no concept that one's religion is matter of personal preference.
Try being an openly practicing Christian in Saudi Arabia, or many other Muslim countries. I am sure that followers of Jesus Christ would love to have a protection of their religious liberty in those places, as well.
Speaking of Islam, some who call themselves supporters of "liberty," argue that Oklahoma should not have passed the law that said no foreign law, including Sharia Law, can be cited by a judge in an Oklahoma court case. I would have to agree that only Oklahoma statutes and its state Constitution, federal statutes, and the U.S. Constitution, and common law, should be used in the courtrooms of this state. That would exclude the laws of, say, France, or Togo, or Viet Nam, and it would also exclude Sharia law.
Some then counter that what if two individuals wish to voluntarily use Sharia law to write a contract? To that, I would say that if these two individuals wish to later present this Sharia-based contract to a Muslim official for adjudication, and abide by that official's decision, they should have a perfect right to do so. I would further add that individuals holding to any other religion should have the same liberty.
Here is the problem: if two Muslims write a contract that says something like, We wish our contract to be interpreted by the principles of Sharia law, there is no way that contract should be considered by an Oklahoma judge. Why? Secular judges should not be interpreting Sharia law, because two Muslims might disagree on the proper interpretation of Sharia law. Same thing with other religious-based contracts. I have heard that if you have two Jews, you have three opinions. Hey, there are twenty-seven different kinds of Baptists for a reason. Folks simply interpret Scripture differently, and it should not be in the province of a judge of this state to try his or her hand at such interpretation.
This is why I find it problematical when I hear someone say that our laws should be interpreted according to "biblical principles." Really? And we are going to have some judge with no biblical training decide what is biblical? The interpretation of biblical principles should be left to the churches, the mosques, and the synagogues to fight over, not district court judges. In 1853, the Senate Judiciary Committee declared, "We are a Christian people . . . not because the law demands it . . . but from choice and education."
I have long held that Christians who want the government to "advance" Christianity are playing with fire. Do we really want government officials advancing their version of Christianity?
Back to Sharia law. If two Muslims wish to have a contract based upon Sharia law, it is very simple. Write one. But don't say something like we wish our contract to be interpreted based upon the principles of Sharia law and expect an atheist judge, a judge who is a deacon in a local Baptist church, or a Prebyterian elder judge to interpret Sharia law. Just write out a contract with whatever words you wish it to say.
On a related subject, let us now consider the Ten Commandments monument at the Oklahoma Capitol. Now, here it is the establishment clause, not the religious free exercise clause, that is the point of dispute. Now, let us lay aside the point that the First Amendment restricted Congress, not the State Legislature, and examine two questions: (1) Did the Ten Commandments monument establish a religion?, and (2) Was this wise public policy to have such a monument erected at the Capitol?
The answer to the first question is simply no, it did not. At a place where the principal activity is the making of laws, a monument of some basic laws does not establish a religion, any more than the quotation of Cicero in the old state Supreme Court room established Roman law. "The ends of justice are that no man shall suffer wrong," said that great Roman statesman. In fact, placing his quotation next to the Ten Commandments monument would be a fine move.
I consider the second question not as simple to answer. While I do not see the First Amendment of the federal Constitution, or any provisions of our Oklahoma state Constitution being violated by this Ten Commandments monument, I am not sure it was a wise move. Its placement on the Capitol grounds sets a precedent. What would stop a future Legislature from deciding that only nine of the ten commandments are valid? Pretty much everyone agrees that there are ten commandments, but there are actual theological differences on how to list them. I realize this sounds ludicrous, but it is theoretically possible that a future Legislature could quote Psalm 14:1, "The fool has said in his heart, There is no God," and leave out the first word, "The fool has said in his heart."
In conclusion, while it might be theoretically correct to simply argue that simple support of liberty would include religious liberty, and the liberty to keep and bear arms, and the liberty of speech or the press, I thank God that Patrick Henry was prescient enough to realize we needed a specific protection of religious liberty included in the Bill of Rights, and that we needed a Bill of Rights added to our federal Constitution.
Of course, perhaps you would rather depend on Justice John Roberts and his inane reasoning instead.
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