The Constitution stipulates that before assuming office the President must take either "an Oath or Affirmation" to defend the Constitution. As every schoolboy used to know, the Framers included the option of "affirming" as an accommodation towards the Quakers, who believed in conscience that Jesus had forbidden oaths.
In this matter the Framers were following English law, which since 1696 had permitted Quakers to "affirm" the truth in courts of law rather than to swear. Before then, Quakers in conscience could neither defend themselves nor give testimony in court, sometimes with grave personal consequences.
Certainly it was open to the Framers to insist on swearing: "That's how we do things, and if you Quakers are unwilling to go along, then that is your problem." But the Framers in their wisdom preferred a tiny accommodation, which showed friendliness to the Friends while still preserving the common good.
The Constitution, then, does not merely protect religious freedom in its Bill of Rights. It also expresses the spirit of religious freedom in the very formula it gives for the President's public avowal that he will defend that Constitution. Religious freedom, and friendliness toward people of conscience, are two sides of the same coin. What believers claim by right, others must be disposed to grant in friendship.
But then we are led to ask: Why the absence of such friendliness from the Obama administration, in its HHS mandate? Why its unwillingness to make an accommodation? For it would have been easy for to do so. HHS might have not included contraceptives and abortifacients (which are not directed at any illness anyway) within the "preventative medicine" which Obamacare requires. Or it might have allowed exemptions based in conscience for religious reasons, in much the same way that over 100 million Americans had already been exempted indefinitely, by "grandfathering," for political reasons.
Obviously, too, the government could provide women with free contraceptives, if it wished, through tax deductions, or by expanding those programs that already provide free contraceptives.
So why is the Obama administration picking a needless fight with Catholics and other believers in an election year? When people act contrary to their reasonable interests, ideology is the culprit. But what is that ideology?
Do not hold your breath expecting it to be revealed in further unscripted "gaffes" by Obama. A better strategy is to examine government's legal arguments, such as the Department of Justice's (DOJ) brief in the Hercules Industries case in Colorado, where last week a small HVAC business run by devout Catholics was given injunctive relief from the HHS mandate by a U.S. District Court.
We find that the DOJ lawyers relied on four disturbing principles.
First, the DOJ in its brief asserts, shockingly, that the free exercise of religion guaranteed by the Constitution can never include how someone runs his business: "Hercules Industries is a for-profit, secular employer, and a secular entity by definition does not practice religion." That is, the philosophy of Obamacare is the philosophy of the "naked" public square. Religion is a purely private matter, and believers can enter the public domain only if they first agree to check their religious convictions and conscience at the door, like a hat.
Second, the DOJ brief presupposes that social utility is a compelling state interest which should govern the provision of health care, and that what counts as social utility should be determined by unaccountable panels of experts. The relevant panel of experts for the mandate was the Institute of Medicine (IOM), which advised the HHS that contraception "is highly cost-effective because the costs associated with pregnancy greatly exceed the costs of contraceptive services. ... it has been estimated to cost employers 15 to 17 percent more to not provide contraceptive coverage in their health plans than to provide such coverage, after accounting for both the direct medical costs of pregnancy and indirect costs such as employee absence and the reduced productivity associated with such absence." The IOM reached this conclusion after hearing testimony only from carefully selected pro-abortion groups, such as Planned Parenthood. Obviously, such a principle is incompatible with democracy and could justify many unjust policies, such as that health insurance will cover only one childbirth.
A third principle endorsed in the brief is that the equality of women requires that women should become like men, rather than the workplace should change to make it easier for women to have children: ""Contraceptive coverage ... furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force."
A fourth principle is the totalitarian idea that the government should be able to control all aspects of the "secular" realm. To allow exemptions to the mandate for religious reasons, the Administration asserts, would mean that "secular companies and their owners [have] become laws unto themselves, claiming countless exemptions from an untold number of general commercial laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs." Conscience gets in the way of the Federal governments "solutions": religious freedom would "cripple the government's ability to solve national problems through laws of general application."
The Catholic Church and sincere Christians reject all of these principles; hence, the Obama administration shows them no goodwill. But how many Americans are aware that in agreeing through their representatives to Obamacare, they have agreed also to this profoundly destructive philosophy?
Michael Pakaluk is Professor and Chairman of the Philosophy Department at Ave Maria University.