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The Long Road to Religious Freedom

This term, the U.S. Supreme Court will be considering a religious liberty case so historic that the central issue winds like a distant road all the way back to a question raised 369 years ago: is government above God? NRB has begun preparations to file an amicus curiae (friend of the court) brief in an appeal that pits the U.S. Government against Hobby Lobby, owned by the Green family, as well as Conestoga Wood Specialties, another family-owned, faith-based company that has religious objections against being forced to provide abortion-inducing drug coverage in their health insurance plans. The insurance issue has arisen because, in implementing the Affordable Care Act (ACA), the Obama Administration has expressly refused to afford for-profit companies, even religiously-founded ones, an exemption from the abortion mandate provisions of the Act.

The tension between government and religious liberty was addressed by 17th Century Scottish pastor and divinity professor Samuel Rutherford in his treatise Lex Rex, published in 1644. Rutherford wrote that law should be above government, not the other way around, and that God, who is the only rightful force that “can lay a band of subjection on the conscience,” resides squarely above law. But the lawyers for the Obama Administration have it backwards. In court filings, they have argued that family-owned businesses, founded on spiritual principles, have no right to place God above government regulations, and cannot complain that their religious consciences have been coerced by ACA regulations -  coerced, in fact, to the tune of millions of dollars in penalties if the government’s view prevails (in the case of Hobby Lobby, a minimum of at least $26 million per year).

The government lawyers have argued that the ultimate issue is not about, at most, some “slight” burden on religious freedom; rather, they say, this appeal is really about “the interests of women who would bear the burden of accommodating the Greens’ personal religious beliefs.”

Which is the real issue here? Is it the fundamental rights of religious freedom of all Americans embedded in our history and recognized in our Bill of Rights? Or is it the rights of some women to have the government bully religious employers into facilitating their decision to prevent or end a pregnancy through mandated insurance coverage? When the Supreme Court affirmed “Obamacare” in 2012, even the justices who voted in the majority noted that the ACA could be in constitutional trouble if it “impermissibly ... interfered with the free exercise of religion.”

About 132 years after Rutherford’s Lex Rex, the Rev. John Witherspoon, a Scottish preacher and the mentor of James Madison, delivered a message just two months before he would join his Founding colleagues in signing the Declaration of Independence. He stated, “God grant that in America true religion and civil liberty may be inseparable and that the unjust attempts to destroy the one, may in the issue tend to the support and establishment of both.”

Perhaps we could add this postscript: God grant that these attempts of the government in our day to unjustly coerce the decisions of the people of faith might support and establish both the diligence of faith and the exercise of liberty in America.

By Craig Parshall
Senior Vice President & General Counsel, National Religious Broadcasters
Director, John Milton Project for Free Speech

Click here to read more articles written by Craig Parshall.

Published: December 12, 2013

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