To the Members of the 112th Congress:
Of all the freedoms protected by our Constitution, none is more cherished – and sometimes more difficult to think through – than religious freedom. We have been reminded of this in the Obama administration's recent decision to require church-backed employers to provide employees with insurance coverage for contraception. After religious organizations protested that this rule would force them to act against their conscience, the administration changed its rule and reached what the President called an "accommodation." This may or may not have solved the immediate problem, but it definitely did not answer the bigger (and more important) question: When should religious groups get an exemption from the law for their beliefs and practices?
Constitutional thinking has not been as consistent as it might have been on this question. The Supreme Court, for example, said in 1963 that religious beliefs and practices deserve an exemption from a law if they are burdened by it. But in 1990 it declared by a split vote that no one has the constitutional right to an exemption from a generally-applicable criminal law, no matter how much it interferes with his beliefs or practices – and no matter how important those beliefs or practices are to his religion. Congress tried to respond in 1993 with the Religious Freedom Restoration Act, which said that states had to exempt religious practices and organizations from burdensome laws unless they had a compelling interest not to do so. But the Court struck down that law in 1997, claiming that Congress did not have the power to expand constitutional freedoms when dealing with the states. In 2006, however, the Court admitted that the Act did still apply to the Federal Government.
The Court should have listened all along to Congress, which was following the lead of the Father of the Constitution himself, James Madison. A concern for religious freedom pushed Madison into his first foray in politics, which came at the Virginia Assembly of May-June 1776. There he successfully moved to amend the Virginia Declaration of Rights to say that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience" – language that he cribbed from later, when he wrote the First Amendment in 1789.
One year after penning the First Amendment, Madison's principles got put to the test while he was serving in the House of Representatives. In December 1790, the House was debating who should serve in the federal militia when it received a petition from the Quakers, who asked to be exempt from military service on the ground that "all revenge, animosity, strife, and contention are utterly forbidden by Christ our Lord." Many Congressmen denounced the Quakers' request as unpatriotic and dangerous, but Madison took to the floor to say that they should be granted an exemption.
According to Madison, each of us has a fundamental natural right to our religious beliefs and practices, which can never be taken away or given up. This freedom includes the right to form and communicate our beliefs – and to practice them unless those practices harm "the rights of other citizens" or "the permanent and aggregate interests of the community," as Madison put it in Federalist 10.
Looking at the Quakers' request, Madison admitted that there were arguments on both sides, but he concluded that Congress should grant the exemption because it was necessary to protect the Quakers' religious freedom, and would not harm other citizens' rights nor undermine America's interest in a functioning militia. He knew that even if the Quakers did not serve in the militia, other citizens would do their "honorable duty"; and he understood that "by penalties we may oppress the Quakers, but by no means hitherto discovered, can you make them undertake the defense of this nation." They would go to jail rather than go against their conscience, which would not help anyone. Despite Madison's appeal, the Quakers did not get their exception. Congress voted to leave the matter to the states.
But Madison got the principle right, and we can apply it to our day. Consider the recent contraception controversy. Exempting religious organizations from providing contraception coverage protects their freedom and would not violate anyone's rights: employees would still be free to buy and use contraceptives, just like people who are free to purchase other health care goods that aren't covered by their particular insurance plans.
Nor would an exemption hurt the "permanent and aggregate interests of the community." The health care system would not be harmed. Hawaii, for example, already permits religious employers to enroll workers in a plan with a reduced premium, and allows employees who want contraception to pay for the coverage out of their own pocket. Health care has not suffered in Hawaii, and those who want insurance coverage for contraceptives can have it.
Unfortunately, the Obama administration did not originally approach this issue with such principles in mind. Even the recent "accommodation" may not be enough. If Congress needs to respond with a law, it should. The issue is simply too important. As Madison reminded his fellow Congressmen in 1790, religious liberty must have the full protection it deserves, especially in America, because "above all it is the particular glory of this country, to have secured the rights of conscience which in other nations are least understood or most strangely violated." His words are as true today as when he spoke them.