Once again, President Obama has exceeded the limits of his executive authority and the American people are witnessing a federal takeover of private enterprise. The latest private sector casualty is none other than religious bodies, which are simply asking the president to accord them the respect they’re entitled to under the Constitution. Instead, through the rubric of the health care mandate requiring religious employers to provide their employees with insurance coverage for contraception, abortion-inducing drugs and sterilization, even if doing so violates their religious beliefs, the administration and its allies on the left have unilaterally decreed that matters of conscience are to be relegated solely to the confines of houses of worship.
How far removed are President Obama’s priorities from those of our Founding Fathers, who enshrined religious freedom in the First Amendment. The president has completely obliterated the First Amendment and is now embarking on a zealous crusade, along with his liberal, pro-abortion, feminist coalition, to destroy independent religious moral authority or any hint of institutional dissent from whatever code is being espoused by the federal government. By imposing this mandate, the president is violating the free-exercise rights of our religious institutions. As chairman of the House Judiciary Committee’s Constitution subcommittee, I find President Obama’s willingness to wield such illegitimate power shocking.
What make this unconstitutional effort all the more appalling are the arguments the Obama administration is using to justify it. The administration and others on the left have speciously contended that the assault on our religious freedom is justified by polling data. They claim that because a majority of women in the United States use birth control, it must be their right to receive such services free of charge from their employers. This argument completely ignores the fact that the same majority already obtains birth control services despite conscientious objections from religious bodies. Thus, it is patently false for the president to portray this debate as one over access to contraceptives.
This is a debate between socially constructed values gained from government dominance on the one hand and absolute rights given to all human beings by our Creator on the other. The notion that the former could trump the latter was exactly what our Founding Fathers sought to preclude when they designed the framework of our country.
The Founders believed in a hierarchy of rights, and they saw religious freedom as an “inalienable right” of all Americans. Alexander Hamilton, for example, eloquently wrote, “The sacred rights of mankind … are written, as with a sunbeam, in the whole volume of human nature, by the Hand of Divinity itself, and can never be erased or obscured by mortal power.” In drafting the Virginia Statute for Religious Freedom, Thomas Jefferson included in the conclusion that, “If any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.” It is the repeal of such natural rights that the Obama administration is currently undertaking.
It is worth noting that the arguments of the Obama administration are hauntingly similar to those of the pragmatists of the early twentieth century, the philosophical progenitors of moral relativism, who believed that the purpose of government was to enact the will of the majority. President Obama and his allies seem to be taking their lead from former Supreme Court Justice Oliver Wendell Holmes, who declared that law had become “wholly indifferent to the internal phenomena of conscience” and that the “tendency of the law everywhere is to transcend moral and reach external standards.” Individual conscience, as Holmes misunderstood it, was subservient to majority consent and “the greater good” was conflated with “the common good.” This brutal worldview, which lacks a proper understanding of the “phenomena of conscience,” is behind the latest assault on religious freedom.
Indeed, with an ethic of “the right of the strong to rule,” we can see clearly the effects of a government that is “wholly indifferent to … conscience.” Consider, for example, one of Justice Holmes’ most infamous Supreme Court opinions, the 1927 case of Buck v. Bell. Holmes believed that the “unfit” were a burden to society and could thus be forcibly sterilized. He wrote that the petitioner, Carrie Buck, was “a feeble minded white woman … the daughter of a feeble minded mother … and the mother of an illegitimate feeble minded child.” Holmes then astoundingly declared, “Three generations of imbeciles are enough.”
This kind of thinking reflected an ideology that justified eugenics; it discouraged or forcibly prohibited reproduction by the “unfit” or “feeble minded” as a way to create a “superior master race.” Many of the early eugenicists like Sir Francis Galton, who coined the term “eugenics,” Margaret Sanger, the founder of Planned Parenthood, and the popular playwright George Bernard Shaw sought a secular substitute for traditional religion and found it in eugenics. The secular creed of eugenics was steeped in the belief that the masses should be subordinate to what the elites defined as the welfare of the state. Some notably stood against this expansion of government power: Justice Pierce Butler, a Catholic, dissented from the majority’s ruling on Buck v. Bell. Tragically for Ms. Buck, Butler was a lone voice in the wilderness calling out for justice.
C. S. Lewis argued in “The Abolition of Man” that every “new power won by man is a power over man as well.” President Obama has rapidly expanded his power and influence over the last three years at the expense of our fundamental rights and the limits of executive power. The argument in the Declaration of Independence — that there exists a “self-evident” truth that “all men are created equal” and are “endowed by their Creator with certain inalienable rights” — is seen by the White House as an anachronistic fable. When we are working with a view of government that is not constrained by the concept of absolute rights and a proper understanding of human dignity for all, there are limitless justifications, in the name of the public good, for what is expedient for the state.
Trent Franks, a Republican member of Congress from Arizona, is the chairman of the House Judiciary Committee’s Constitution subcommittee.