In recent weeks, Senator Ted Cruz has been under attack for comments that he made at the Conservative Political Action Conference in support of religious liberty.
Senator Cruz explained how powerful elements within the Democratic Party, including the Obama Administration, are “fighting a war on religious liberty.”[i] He highlighted some of the hardships that Catholic and other religious charities and business owners may face in light of the Obama Administration’s “HHS mandate.”
Though some dismiss Cruz’s concerns as alarmist or extreme, they entirely miss the point. While it is true that no one is talking of repealing the First Amendment, the deeper truth is that a hollowed-out First Amendment will eventually collapse, no longer an effective shield against state power. The HHS mandate is part of that hollowing-out.
Earlier this year, on Religious Freedom Day, President Obama said, “Americans hold sacred…the freedom to worship as we choose.”[ii] Likewise, the former Secretary of State, Hilary Clinton, emphasized “freedom of worship.”[iii]
While that way of putting it may, at first glance, seem unexceptional, a closer look reveals that it actually points to the very problem Senator Cruz was addressing. Is “the freedom to worship” the same as “freedom of religion”? No it isn’t. The freedom of religion entails much more than being able to “worship;” it includes being able to live out your faith. And that means to conduct your affairs – for-profit or nonprofit –so as to honor your deepest beliefs. If freedom of religion is reduced to “freedom of worship,” does your right to religion stop when you walk out the front door of your church, temple, or mosque?
That is what some judges in HHS mandate cases apparently believe. For example in Frank R. O’Brien v. U.S. Department of Health and Human Services, Judge Jackson opined, “Frank O’Brien [the owner of the business] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion.” Apparently, the judge believes that it is irrelevant if Mr. O’Brien is coerced into violating his conscience every day of the week so long as he is able to worship on Sunday morning.
The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Until recently – until the Obama administration began asserting to the contrary- it was clear that the Constitution protects the freedom to live one’s faith, not just the right to show up at a church, temple, or mosque.
The critics of Senator Cruz are buying into a quite truncated notion of what religious freedom is. Americans need to support brave souls like Senator Cruz who insist on a more robust understanding of our “first freedom.”
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[ii] The White House, Office of the Press Secretary, “Presidential Proclamation — Religious Freedom Day,” January 16, 2013, available at, https://www.whitehouse.gov/the-press-office/2013/01/16/presidential-proclamation-religious-freedom-day
[iii] Hillary Rodham Clinton, U.S. Department of State, “Remarks on the Human Rights Agenda for the 21st Century,” December 14, 2009, available at, https://www.state.gov/secretary/rm/2009a/12/133544.htm.