By Judge Andrew Napolitano
When we were colonists and fought a war against the king and Parliament so that we could secede from the British Empire and be independent of it we also fought for the value of personal freedom. That is the idea that in matters of personal choice the government should play no role. The king only cared about the colonists personal choices if he could control or tax them.
One of the taxes he imposed was to support the Church of England. The Church of England that the colonists tax dollars supported was of course in England; it was not here. So among the hateful taxes that impelled the colonists to revolt was this tax to support the kings church.
When the Constitution was written religious freedom was a principal matter for discussion and debate among the Framers. They addressed this in the first clause of the First Amendment. Before the Constitution even protects the freedom of speech it protects the natural right to worship or not to worship free from the government. Here is what it says: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...
That is very direct and clear. It was intended to prevent any tax money from going to a church and it was intended to keep the government from using its coercive powers to influence or to punish religious institutions. For 125 years most governments in America left churches alone.
Then along came the progressive attitude that some ethnic groups are superior to others. This is a damnable and racist view that was foist upon the federal government by Theodore Roosevelt and Woodrow Wilson in direct response to the influx of southern European immigrants at the beginning of the last century most of whom were Catholic. Roosevelt and Wilson and their progressive followers thought these immigrants had too many children children who would grow up to be voters and vote out their Nanny State central-planning values. So they began to encourage birth control and sterilizations and even abortions.
The Catholic Church resisted this by its teachings on birth control. The Church had made its teaching on contraception a core part of its mission for 400 years and Pope Paul VI reaffirmed these teachings in a permanent way in 1967. That the Church embraces these teachings is well known and equally as well known is the policy of the federal government to resist them.
But that resistance reached unconstitutional proportions a few weeks ago when Health and Human Services Secretary Kathleen Sebelius herself a Catholic issued regulations that require all employers in America to provide health insurance that makes contraceptive materials and devices available to their employees. The all employers includes Catholic universities Catholic hospitals Catholic schools and even local Catholic churches. The failure to comply with this law will result in a fine to these institutions and the provision of contraceptive coverage to their employees by the government itself.
This is quite literally Congress making a law that interferes with the free exercise of religion. This is not about the morality of contraception. This is about the constitutionality of government coercion coercion of religious institutions coercion directly and profoundly prohibited by the Constitution itself. The motivation for the coercion -- that Catholics have too many babies -- is reprehensible and those in government who embrace that and are willing to use the power of government to resist that should be voted out of office. But the coercion is the same as that faced by the folks who seceded from England because of the kings tax to pay for his church.
We have a king today and he wants a tax to pay for his church. The king is the president and his church is called Obamacare. We cant let this happen here. This is not just a Catholic issue. This is an issue about whether the Constitution means what it says. Does the Constitution let the government compel Jews to eat pork or Protestants to genuflect or Muslims to own dogs or Catholics to pay for contraception? The answer is obvious.
Judge Andrew Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995 during which time he presided over 150 jury trials and thousands of motions sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years and he returned to private practice in 1995. Judge Napolitano began television work in the same year.
