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The philosophy of Obamacare


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.

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