First Amendment:
Congress shall make no law…prohibiting the free exercise [of religion]…or abridging the freedom of speech…or the right of the people peaceably to assemble…
Lawyers at the U.S. Department of Health and Human Services (HHS) must ignore the First Amendment’s original meaning. Since August 2012, HHS has forced many religious employers, including such Catholic, for-profit businesses as Triune Health Group, to fund their employees’ contraceptives, abortifacients, and sterilizations through health insurance plans. Next year, HHS will force such religious employers as Catholic schools, charities, and hospitals to do the same.
HHS’ mandate only exempts “religious employers” who meet all of the following qualifications:
- Inculcate religious values
- Primarily employ persons of the same religion
- Primarily serve persons who share the religion’s tenets
- Are non-profit organizations under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended
However, in the First Amendment’s original meaning, who would the Founders have considered “religious” employers? Certainly the Founders wouldn’t have considered being “non-profit organizations under…the Internal Revenue Code of 1986…” a qualification for being “religious.” Samuel Johnson’s A Dictionary of the English Language (1755), the most widely used dictionary at the First Amendment’s ratification, defined “religious” as broadly as “pious; disposed to the duties of religion” and “teaching religion,” with “to teach” meaning such definitions as “to instruct; to inform” and “to deliver any doctrine or art, or words to be learned.”
According to Johnson’s definitions of “religious” and “to teach,” religious employers include evangelizers or teachers of religion. Religious employers are not simply, according to HHS’ mandate, employers who “primarily” employ or serve persons with the same religion. Of course, religious employers who evangelize and teach religion include religious schools, charities, and hospitals. If employers simply convey a religious doctrine, religious “words to be learned,” or even religious art to customers, then in the First Amendment’s original meaning, the employers would be religious. For example, employers displaying the Ten Commandments, Star of David, or Wheel of Dharma in their front offices would be religious employers.
What did the Founders mean by the First Amendment’s “prohibiting the free exercise [of religion],” which surely protects the Founders’ “religious” employers? For starters, Johnson’s dictionary defined this First Amendment clause’s “prohibit” as “to forbid” and “to hinder,” with “to hinder” meaning “to obstruct; to stop…” and “to impede.” Johnson defined “free” as “at liberty,” “uncompelled; unrestrained,” and “permitted; allowed.” Johnson said to “exercise” meant “to practice” and “to perform,” with “to practice” meaning “to do habitually” and “to do, not merely to profess.” Johnson noted “of religion” meant “[of] a system of divine faith and worship” and of “virtue, as founded upon reverence of God, and [an] expectation of future rewards and punishments.”
According to this description of “prohibiting the free exercise [of religion],” HHS shouldn’t hinder practices of systems of divine faith or worship, professions of virtues founded upon God’s reverence, or any actions based on expectations of future rewards and punishments. Thus, for example, HHS shouldn’t hinder Catholics’ practice or profession of sexual chastity or pro-life virtues through a contraceptive/abortifacient/sterilization mandate.
Should HHS’ mandate and its narrow definition of “religious employers” trump the Founders’ understanding of “prohibiting the free exercise [of religion]” and “religious” employers? If so, then Congress or such U.S. agencies as HHS could define other words in the First Amendment. For instance, Congress could define the First Amendment’s “speech” as only words intended for folks of the same or similar viewpoint or the First Amendment’s “to assemble” as to gather with folks in the same political party.
The Founders understood “religion” and “religious” as having broad definitions, but HHS’ contraceptive/abortifacient/sterilization mandate severely limits these definitions. HHS’s lawyers should exempt all employers who, in any way, are disposed to religious duties or teach religion, including Catholic for-profit businesses, schools, charities, and hospitals.
About Dan Smyth
