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.