Attorney General Sessions’ Religious Liberty Protections and the First Amendment

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Attorney General Sessions' Religious Liberty Protections and the First Amendment

On Fri­day, Octo­ber 6th Pres­i­dent, Trump’s Attor­ney Gen­eral, Jeff Ses­sions, released sweep­ing reli­gious lib­erty pro­tec­tions. Con­tained in these pro­tec­tions is a rever­sal of ObamaCare’s con­cep­tion man­date. Most of these reli­gious lib­erty pro­tec­tions are noth­ing new at all. They are con­tained in the Free Exer­cise of Reli­gion Clause of the First Amend­ment. Unfor­tu­nately that clause has been ignored com­pletely by those pro­mot­ing the myth­i­cal con­sti­tu­tional pro­vi­sion called the sep­a­ra­tion of church and state. Here are excerpts from the new guidelines:

Reli­gious lib­erty is enshrined in the text of our Con­sti­tu­tion and in numer­ous fed­eral statutes. It encom­passes the right of all Amer­i­cans to exer­cise their reli­gion freely, with­out being coerced to join an estab­lished church or to sat­isfy a reli­gious test as a qual­i­fi­ca­tion for pub­lic office. It also encom­passes the right of all Amer­i­cans to express their reli­gious beliefs, sub­ject to the same nar­row lim­its that apply to all forms of speech. In the United States, the free exer­cise of reli­gion is not a mere pol­icy pref­er­ence to be traded against other pol­icy pref­er­ences. It is a fun­da­men­tal right.

Attor­ney Gen­eral Ses­sions is mostly cor­rect in this state­ment. I’m not sure exactly what lim­its he is talk­ing about. The Free Exer­cise Clause demands that the fed­eral gov­ern­ment refrain from med­dling in the exer­cise of reli­gion in any way. Any restric­tions of reli­gious prac­tices were left to the indi­vid­ual States where the peo­ple liv­ing there can keep their gov­ern­ment from abus­ing this most sen­si­tive power. The States, rather that the fed­eral gov­ern­ment, have the author­ity to ban such harm­ful prac­tices as human sac­ri­fice, rit­ual muti­la­tion, and polygamy.

The Free Exer­cise Clause pro­tects not just the right to believe or the right to wor­ship; it pro­tects the right to per­form or abstain from per­form­ing cer­tain phys­i­cal acts in accor­dance with one’s beliefs. Fed­eral statutes, includ­ing the Reli­gious Free­dom Restora­tion Act of 1993 (“RFRA”), sup­port that pro­tec­tion, broadly defin­ing the exer­cise of reli­gion to encom­pass all aspects of obser­vance and prac­tice, whether or not cen­tral to, or required by, a par­tic­u­lar reli­gious faith.

Attor­ney Gen­eral Ses­sions is cor­rect on this par­tic­u­lar pro­tec­tion, which dates back to the rat­i­fi­ca­tion of the Bill of Rights.

Con­sti­tu­tional pro­tec­tions for reli­gious lib­erty are not con­di­tioned upon the will­ing­ness of a reli­gious per­son or orga­ni­za­tion to remain sep­a­rate from civil soci­ety. Although the appli­ca­tion of the rel­e­vant pro­tec­tions may dif­fer in dif­fer­ent con­texts, indi­vid­u­als and orga­ni­za­tions do not give up their religious-​liberty pro­tec­tions by pro­vid­ing or receiv­ing social ser­vices, edu­ca­tion, or health­care; by seek­ing to earn or earn­ing a liv­ing; by employ­ing oth­ers to do the same; by receiv­ing gov­ern­ment grants or con­tracts; or by oth­er­wise inter­act­ing with fed­eral, state, or local governments.

The Free Exer­cise of Reli­gion Clause pre­vents the fed­eral gov­ern­ment from inter­fer­ing with the reli­gious beliefs of any­one. This includes all indi­vid­ual and all groups of indi­vid­u­als. There are no excep­tions to this clause so the Attor­ney Gen­eral is cor­rect with this statement,

RFRA pro­tects the exer­cise of reli­gion by indi­vid­u­als and by cor­po­ra­tions, com­pa­nies, asso­ci­a­tions, firms, part­ner­ships, soci­eties, and joint stock com­pa­nies. For exam­ple, the Supreme Court has held that Hobby Lobby, a closely held, for-​profit cor­po­ra­tion with more than 500 stores and 13,000 employ­ees, is pro­tected by RFRA.

The right of con­scious has always been a key com­po­nent of the Free Exer­cise of Reli­gion Clause. It is one of the God=given Nat­ural Rights pro­tected by that clause. Because of the First Amend­ment, the Obama Admin­is­tra­tion was absolutely wrong when it tried to force indi­vid­u­als, com­pa­nies, and reli­gious orga­ni­za­tions to vio­late their reli­gious prin­ci­ples. Ses­sions was right to set aside the con­tra­cep­tion man­date how­ever his jus­ti­fi­ca­tion was flawed when he cited the RFRA as his sole justification.

A care­ful exam­i­na­tion of the draft­ing of the First Amend­ment will prove that the Attor­ney General’s guide­lines are all con­tained in the Free Exer­cise of Reli­gion Clause. Here is an excerpt from the Vir­ginia Rat­i­fy­ing Con­ven­tion for the Con­sti­tu­tion, when the Free Exer­cise of Reli­gion Clause was pro­posed. This took place on June 27, 1788.

20th. That reli­gion, or the duty which we owe to our Cre­ator, and the man­ner of dis­charg­ing it, can be directed only by rea­son and con­vic­tion, not by force or vio­lence; and there­fore all men have an equal, nat­ural, and unalien­able right to the free exer­cise of reli­gion, accord­ing to the dic­tates of con­science, and that no par­tic­u­lar reli­gious sect or soci­ety ought to be favored or estab­lished, by law, in pref­er­ence to others.

Here is an early Draft of First Amend­ment by James Madi­son. This pas­sage is from the House of Rep­re­sen­ta­tives tran­scripts from the draft­ing of the Bill of Rights, June 8 1789

Fourthly. That in arti­cle 1st, sec­tion 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of reli­gious belief or wor­ship, nor shall any national reli­gion be estab­lished, nor shall the full and equal rights of con­science be in any man­ner, or on any pre­text, infringed.

Here is a later Draft from August 15, 1789, which was read by Mr. Doudinot, who was sit­ting as Chair­man of the Com­mit­tee of the Whole

Arti­cle 1. Sec­tion 9. Between para­graphs two and three insert “no reli­gion shall be estab­lished by law, nor shall the equal rights of con­science be infringed.

Here is the dis­cus­sion that fol­lowed that reading:

Mr. [Daniel] Car­roll. – As the rights of con­science are, in their nature, of pecu­liar del­i­cacy, and will lit­tle bear the gen­tlest touch of gov­ern­men­tal hand; and as many sects have con­curred in opin­ion that they are not well secured under the present con­sti­tu­tion, he said he was much in favor of adopt­ing the words. He thought it would tend more towards con­cil­i­at­ing the minds of the peo­ple to the Gov­ern­ment than almost any other amend­ment he had heard proposed.

Mr. Madi­son said, he appre­hended the mean­ing of the words to be, that Con­gress should not estab­lish a reli­gion, and enforce the legal obser­va­tion of it by law, nor com­pel men to wor­ship God in any man­ner con­trary to their conscience.

As you can see from this excerpt, the right of con­scious is an inte­gral com­po­nent of the Free Exer­cise Reli­gion Clause of the First Amend­ment. This has been repeat­edly ignored by the fed­eral gov­ern­ment for over almost 100 years. The guide­lines issued by Attor­ney Gen­eral Ses­sions sim­ply restore this clause back to the orig­i­nal mean­ing. Unfor­tu­nately a future pres­i­dent can sim­ply ignore it and return us back to where we were before its release. We the peo­ple need to insist the fed­eral gov­ern­ment fol­low the orig­i­nal mean­ing of this extremely impor­tant clause.

On Friday, October 6th President, Trump’s Attorney General, Jeff Sessions, released sweeping religious liberty protections.   Contained in these protections is a reversal of ObamaCare’s conception mandate.  Most of these religious liberty protections are nothing new at all.  They are contained in the Free Exercise of Religion Clause of the First Amendment.  Unfortunately that clause has been ignored completely by those promoting the mythical constitutional provision called the separation of church and state.  Here are excerpts from the new guidelines:

Religious liberty is enshrined in the text of our Constitution and in numerous federal statutes. It encompasses the right of all Americans to exercise their religion freely, without being coerced to join an established church or to satisfy a religious test as a qualification for public office. It also encompasses the right of all Americans to express their religious beliefs, subject to the same narrow limits that apply to all forms of speech. In the United States, the free exercise of religion is not a mere policy preference to be traded against other policy preferences. It is a fundamental right.

Attorney General Sessions is mostly correct in this statement.  I’m not sure exactly what limits he is talking about.  The Free Exercise Clause demands that the federal government refrain from meddling in the exercise of religion in any way.  Any restrictions of religious practices were left to the individual States where the people living there can keep their government from abusing this most sensitive power.   The States, rather that the federal government, have the authority to ban such harmful practices as human sacrifice, ritual mutilation, and polygamy.

The Free Exercise Clause protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs. Federal statutes, including the Religious Freedom Restoration Act of 1993 (“RFRA”), support that protection, broadly defining the exercise of religion to encompass all aspects of observance and practice, whether or not central to, or required by, a particular religious faith.

Attorney General Sessions is correct on this particular protection, which dates back to the ratification of the Bill of Rights.

Constitutional protections for religious liberty are not conditioned upon the willingness of a religious person or organization to remain separate from civil society. Although the application of the relevant protections may differ in different contexts, individuals and organizations do not give up their religious-liberty protections by providing or receiving social services, education, or healthcare; by seeking to earn or earning a living; by employing others to do the same; by receiving government grants or contracts; or by otherwise interacting with federal, state, or local governments.

The Free Exercise of Religion Clause prevents the federal government from interfering with the religious beliefs of anyone.  This includes all individual and all groups of individuals.  There are no exceptions to this clause so the Attorney General is correct with this statement,

RFRA protects the exercise of religion by individuals and by corporations, companies, associations, firms, partnerships, societies, and joint stock companies. For example, the Supreme Court has held that Hobby Lobby, a closely held, for-profit corporation with more than 500 stores and 13,000 employees, is protected by RFRA.

The right of conscious has always been a key component of the Free Exercise of Religion Clause.  It is one of the God=given Natural Rights protected by that clause.  Because of the First Amendment, the Obama Administration was absolutely wrong when it tried to force individuals, companies, and religious organizations to violate their religious principles.  Sessions was right to set aside the contraception mandate however his justification was flawed when he cited the RFRA as his sole justification.

A careful examination of the drafting of the First Amendment will prove that the Attorney General’s guidelines are all contained in the Free Exercise of Religion Clause.  Here is an excerpt from the Virginia Ratifying Convention for the Constitution, when the Free Exercise of Religion Clause was proposed.  This took place on June 27, 1788.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.

Here is an early Draft of First Amendment by James Madison.  This passage is from the House of Representatives transcripts from the drafting of the Bill of Rights, June 8 1789

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

Here is a later Draft from August 15, 1789, which was read by Mr. Doudinot, who was sitting as Chairman of the Committee of the Whole

Article 1. Section 9. Between paragraphs two and three insert “no religion shall be established by law, nor shall the equal rights of conscience be infringed.

Here is the discussion that followed that reading:

Mr. [Daniel] Carroll.–As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed.

Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.

As you can see from this excerpt, the right of conscious is an integral component of the Free Exercise Religion Clause of the First Amendment.  This has been repeatedly ignored by the federal government for over almost 100 years.  The guidelines issued by Attorney General Sessions simply restore this clause back to the original meaning.  Unfortunately a future president can simply ignore it and return us back to where we were before its release.  We the people need to insist the federal government follow the original meaning of this extremely important clause.