Revisiting America’s First Principles With President Biden

COMMENTARY: In light of the legal protection that religious liberty enjoys in the US, I’d like to offer three bits of legal advice.

American flag waves next to a cross at sunset.
American flag waves next to a cross at sunset. (photo: Anthony Heflin / Shutterstock)

President Biden, in your first two months in the White House, you seem to have been trying to transform U.S. society with scant regard for an important civil right — religious freedom. To avoid embarrassing defeats in the Supreme Court, now is a good time to revisit first principles.

Chief among the “blessings of liberty” secured by the Constitution are those rights found in the First Amendment — which, may I respectfully remind you, isn’t a gift from the government but instead a check on government overreach. The guarantee of the free exercise of religion, for example, is not something that requires your administration’s approval. The Declaration of Independence calls such rights “the laws of nature and of nature’s God.” 

There is another law related to religious liberty — the Religious Freedom Restoration Act (“RFRA”). You voted “Yea” in support of it as a senator back in 1993. RFRA expressly limits federal encroachment on religious liberty. It places the burden on you and your administration to avoid restrictions on the exercise of religion unless a very high bar is cleared.

In light of all this legal protection that religious liberty enjoys here in the United States of America, I’d like to offer three bits of legal advice moving forward. 

First, before enacting new policies or initiatives, invite religious and moral objectors to the table to carve out acceptable exemptions or accommodations.

You surely must recall the battle you and President Obama waged against the Little Sisters of the Poor — an order of Catholic nuns who care for the elderly poor. The nuns object to the Affordable Care Act’s “contraceptive mandate.” They do not want to have their employee health insurance plans hijacked to provide abortion pills. It has been almost five years since the Supreme Court directed the Obama administration to craft an acceptable accommodation for objecting nonprofit religious groups like the sisters. While President Obama dragged his feet, your immediate predecessor succeeded in crafting an acceptable exemption rule. 

Last summer the Supreme Court recognized the authority of the federal government to issue this rule — despite protests from state attorneys general including California’s Xavier Becerra, who was just confirmed to be your Secretary of Health and Human Services. Though not necessary for the court’s holding, Justice Samuel Alito, in a concurring opinion, asserted that RFRA likely requires the federal government to carve out exemptions for religious objectors. He makes a compelling argument. 

On the campaign trail you told the abortion lobby you would rescind the religious and moral objector rule if elected. I urge you not to do so. Spare the sisters another litigation ordeal and the Biden administration a loss to the sisters in the Supreme Court.

Another Obama-era ACA mandate — the “transgender mandate” — requires doctors to perform gender transition procedures on any patient referred by a mental health professional, including a child and demands many employers to provide insurance coverage. Shockingly, the mandate allows for no conscience exemptions. 

A district court in North Dakota reviewing a challenge brought by the Catholic Benefits Association to the mandate, as well as its application to Title VII — the employment anti-discrimination law — recently stopped its application to the group, its current and future members. And the Fifth Circuit is reviewing a challenge to the mandate’s blatant affront to conscience rights brought by an association of doctors and hospitals. Mr. President, respect the conscience rights of these litigants. And then enact a final rule exempting any and all religious and moral objectors to the “transgender mandate.” If you don’t, the Supreme Court very well might order you to do so.

Second, allow faith-inspired organizations to operate without being forced to agree to progressive policies that are at odds with their religious or moral teachings.

Several state and local governments, for example, have forced Catholic foster care and adoption agencies to shut down because they adhere to Church teaching on marriage. Catholic Social Services in Philadelphia, a ministry of the Archdiocese, proposed referring any same-sex married couple that approached them to another agency. The city’s leaders demanded absolute conformity and refused to renew their agreement. The Catholic agency, along with two long-time foster mothers, has asked the Supreme Court to step in. The Biden administration should publicly support the Catholic foster care agency’s religious freedom by standing up against the city’s intolerance and demand for ideological conformity.
Third, don’t lend your support to any laws that exclude religious freedom protections or undermine them.

Earlier this month the House passed the Equality Act. You are a vocal supporter of the act. It is sweeping legislation that amends all of our civil rights laws to encompass sexual orientation and gender identity with numerous additional consequences. And it expressly bars RFRA as a defense or independent claim. 

Fortunately, the guarantees of the First Amendment cannot be legislated away. And when it comes to matters related to human sexuality and identity, the Supreme Court continues to recognize that many Americans have sincerely held religious beliefs. 

In Obergefell v. Hodges, the 2014 case where the Court declared a Constitutional right to same-sex marriage, Justice Anthony Kennedy, author of the majority opinion, observed that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Similarly, Justice Neil Gorsuch, writing for the court’s majority this past summer in Bostock v. Clayton County, declaring that Title VII’s prohibition on sex discrimination encompasses sexual orientation and gender identity, recognized the continued importance of religious freedom. “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” Gorsuch wrote. 

I’m betting that the Court in its current composition will not be any less deferential to religious freedom if the Equality Act is passed and enforced against religious institutions or individuals. 

Congress may soon revisit a bill aimed at erasing RFRA. When a senator, your vice president, Kamala Harris, sponsored the Do No Harm Act. Presented as an amendment to RFRA, the Act would grossly undermine RFRA by rendering it unenforceable to seek or justify faith-based exemptions to certain federal laws. 

If the “Do No Harm Act” ever becomes law, RFRA will also no longer apply to various rules controlling health care coverage and government contracts. You cannot allow this to happen. Agree to disagree with Vice President Harris and oppose the “Do No Harm Act” if it is presented again in Congress.

Mr. President, respect for religious freedom and conscience rights is a bedrock principle found in our Constitution and federal laws. You may wish to be seen as a “progressive “president, but to undermine basic freedoms is not progress. Stay within the limits of your authority and be mindful of the Constitution and federal laws. If you don’t, the Supreme Court will likely remind you.

Andrea Picciotti-Bayer is the director of the Conscience Project.

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