Although there was hardly a Catholic among them, the Founding Fathers would surely be with the bishops on President Barack Obama’s Health and Human Services’ mandate.

The young American republic was largely born from a Protestant dissenting tradition. The freedom to worship freely was a deep root of the colonial experience; as scholars like Barry Alan Shain and Donald Lutz have shown, colonial America was made up of countless small congregations wanting to live as their beliefs guided them.

It was reflected, of course, ultimately in the First Amendment, which enshrined that Congress could make no law prohibiting the free exercise thereof. Most of the state constitutions followed suit, even where there was some public support for religion.

James Madison, in a famous 1785 statement called “Memorial and Remonstrance,” set forth what became a common American understanding of religious freedom:

‘The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.’

Even Thomas Jefferson, perhaps the most secular of the founders, recognized that forcing people to act contrary to their beliefs was an abuse of power. 

In a 1777 draft of a bill for religious liberty in Virginia (meant in part to disestablish the Anglican Church), he wrote, “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

Of course, it is true that many founders did not think highly of the Church. And it is also true that Catholics suffered from various privations because of their faith. The great founder Charles Carroll of Carrollton, for example, was early in his career prevented from holding public office in his native Maryland because of his faith.

Even into the 20th century, with the failed presidential candidacy of Al Smith in 1928 and the successful candidacy of John F. Kennedy in 1960, Catholics too often were suspected of dual loyalty, or worse. Current Republican candidate Rick Santorum has also faced similar criticism.

Nevertheless, even with those suspicions, the new nation had little interest in internal Church affairs or in how it carried out its works of mercy, such as hospitals and adoption agencies.

In a famous story, the Church came to the young American government to discuss arrangements for placing the first bishop in America. To the astonishment of the papal nuncio, the government (in the person of Benjamin Franklin) stated that it was no business of the American government whom the Church appointed as its leaders. That relationship, so different from Europe, defined the Church’s understanding of American freedom and helped it grow with little interference.

Indeed, the combination of implicit public hostility and legislative indifference helped the Church create its vast social service network in the first place. Even the infamous Blaine Amendments, a mark of bigotry still included in many state constitutions and laws, did not force Catholics to do anything contrary to Church teaching.

This core American principle of internal, ecclesial self-government was recently affirmed by the Supreme Court in the Hosanna Tabor case, another reminder of the founders’ wisdom that the state will always seek to encroach on other sources of authority. Instead, the founders realized that, in the words of the Declaration of Independence, governments are instituted to “secure” rights, not grant them.

Rights already exist, including the right to seek the truth in religion. In Madison’s words, religious obligations precede the “claims of civil society.”  It is the genius of the American system that in a nation so varied a workable pluralism was able to develop, in part because the state, in its actions, allowed free reign for believers to act upon their beliefs.

Now, however, the state has taken quite a different approach. It is no longer simply indifferent to religious believers, but is actively working to move them out of both public life and those private services believers have provided for decades. Moreover, some political leaders treat religious liberty not as a right to be “secured,” but as one that can be modified or altered in light of secular values the state now deems important. This is exactly contrary to the American tradition of religious liberty. Actions such as that by HHS treat religious persons as second-class citizens, whose entry and participation in public life is limited by their faith. 

HHS and their supporters would do well to consider what Madison and Jefferson would think.

Gerald J. Russello is editor of The University Bookman.