President Barack Obama
The White House
I understand from public reports that you taught a course in Constitutional law at the University of Chicago some years ago, though I have not seen a publication of your class syllabus for that course. I note, too, that you were graduated from Harvard University School of Law. I assume that you took a course in Constitutional law while attending Harvard, though a transcript of your Harvard course work indicating such a course has not been published.
News accounts during the past weeks report great controversy over a new requirement that religious institutions will soon be required to fund all medical requirements of their employees. I note with interest that you, too, have commented on it, apparently concluding that these institutions must pay for medical services just like all other institutions covered by the Affordable Care Act (ACA).
Liberty of conscience, especially in religious matters, certainly is at the heart of this dispute. It occurred to me that you would have a clear view of this issue, having taught Constitutional law for a time. Since your public statements give no indication that you are familiar with the Religion Clause, I wondered how that could be in light of your time teaching it. Then it occurred to me that you had the same experience as others of us who have taught at the college or university level — we do not always get to the end of our syllabi. In the case of the Constitution, that could mean that you did not get to the Bill of Rights in your course.
As everyone knows, the Founding Fathers placed freedom of religion in the first two clauses of the Bill of Rights (First Amendment). They did so because this issue was foremost in the public mind. Assuming that you did not get a chance to study the religion clause, and therefore, did not lecture on it at the University of Chicago, let me briefly sum up the essence of the matter. I believe that this could help you to understand liberty of conscience better.
We all know that George Mason and Thomas Jefferson led the way towards religious liberty in Virginia in the 1770s. This resulted in the famous Virginia Statute on Religious Liberty in 1786. Before that, however, two important statements about religious liberty were promulgated. The first was the Constitution of the State of Virginia, published in 1776 including a “Bill of Rights,” the last section of which stated the following:
That religion, or the duty we owe 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 are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.
Months before the enactment of the 1786 statement on religious liberty, a second very important document appeared. It was James Madison’s famous argument, presented to the state legislature for enactment, against state support for churches and in favor of religious liberty based on liberty of conscience which was already enshrined in the state constitution — noted above. It had that odd title often used in the late 18th century: A MEMORIAL AND REMONSTRANCE. In addition to the emphasis on liberty of conscience, defined in the Virginia Bill of Rights, Madison stressed a point that is significant for today’s arguments about liberty of conscience and proposed state action. Said Madison, “We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that religion is wholly exempt from its cognizance.” He continued, “If religion be exempt from the authority of the Society at large, still less can it be subject to that (authority) of the Legislative Body.” Madison goes on to say rulers who encroach on the barriers between liberty of conscience and the power of civil society “are Tyrants.”
All other states by 1780 had provisions in their constitutions for liberty of conscience, each almost a mirror image of the others. It’s not surprising, therefore, that when it came time during the first session of Congress to draft a Bill of Rights for the federal Constitution, the first clause was a religion clause. That it was intended to mirror the liberty of conscience clauses of the state constitutions is evident in the developing drafts of the religion clauses by the Congress in the summer of 1789. Joseph Gales, comp., The Debates and Proceedings in the Congress of the United States (Washington, 1834), pp. 434, 729, 766, records the following development of the religion clause:
(June 8) The civil rights of none shall be abridged on account of religious belief or worship, nor shall any religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
(August 2) Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
(August 15) No religion shall be established by law, nor shall the equal rights of conscience be infringed.
(September 25) Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof …
The September statement is the one that came back from the printer. After much study, my view is that since printers were also editors in that era, the reflexive “thereof” was an editorial change that did not change the standing practice of seeing “freedom of religion” and “liberty of conscience” as interchangeable phrases.
The point here, President Obama, is that Congress, in drafting the religion clauses of the Bill of Rights, was reflecting provisions found in all of the state constitutions at the time of the American Revolution — all providing for liberty of conscience. This reflected a common phrase in America, dating back a century and a half, namely, ”God alone is Lord of the conscience and has made it free from the doctrines and commandments of men.”
President Obama, let me make one more point that you probably might know about. The Constitution of the State of Illinois, dated December 15, 1971, begins with a preamble which states, “Grateful to Almighty God for the civil, political, and religious liberty He has permitted us to enjoy and seeking His blessing ... we establish this constitution.” Then Section 3, entitled “Religious Freedom,” states: “The free exercise of religion and enjoyment of religious profession and worship, without discrimination shall forever be guaranteed.” And it adds, “Liberty of conscience is hereby secured.” Last time I checked, most of the other states have the same or similar clauses in their constitutions as does your home state of Illinois.
President Obama, there seems to be only one conclusion that can be reached in a study of liberty of conscience clauses in American constitutions from the early days of the Revolution to the present hour. It is this: People’s religious views, excepting outrageous and unreasonable actions, cannot be infringed upon by anyone, especially not by the civil government (state).
It would seem to me that as America’s Chief Magistrate, after reviewing the development of liberty of conscience as outlined above, and having taught Constitutional law, you would be especially careful to support liberty of conscience when issuing executive orders or departmental regulations.
Finally, you may find that the liberty of conscience of citizens constrains or limits some things you may wish to do. That, however, is a condition of your office given the separation of powers in the Constitution.
Exercising my religious liberty, I pray for you often.
L. John Van Til, Ph.D.
Dr. L. John Van Til is a fellow for law & humanities with The Center for Vision & Values at Grove City College.
Publication date: February 16, 2012