Freedom of Religion and the HHS Mandate: Is Freedom of Religion becoming a Second Class Constitutional Right?

From the Catholic perspective, a very troubling aspect of the HHS Mandate is the manner in which our asserted Constitutional Right to Religious Freedom has been addressed by the Administration and essentially ignored by the public at large. Indeed, the manner in which our Freedom of Religion has been treated in the HHS Mandate appears to be part of a troubling overall trend of making Freedom of Religion less important than other Constitutional rights.

At a minimum, it does not appear that our Freedom of Religion claim is getting the kind of deference and respect as do other Constitutional rights. Thus, many Catholics are asking whether or not Religious Freedom is becoming de facto a second class Constitutional right, particularly when one compares our First Amendment Right to Freely Exercise our Religion with the manner in which the courts and the Administration treat other asserted Constitutional rights.

To illustrate this point, I would like to briefly share what I have professionally observed throughout my legal career – that whenever a party in a case asserts a Constitutional right, the judges and lawyers on both sides of the conflict acknowledge the importance of showing due respect for the Constitutional right at stake. We lawyers often refer to this extra legal protection under the Constitution as the “cloak of Constitutional protection.”

In the civil context, journalists get the “cloak of Constitutional protection” for the Freedom of the Press — and rightly so. In the civil context, persons who have been discriminated against based on race get a “cloak of Constitutional protection” – and rightly so. Indeed, in the criminal court system, many criminals are set free and serious charges are dropped because of concerns for the Constitutional rights of all Americans who might face criminal charges – and rightly so. But when members of the Catholic Church assert a legitimate Constitutional right, we do not seem to get the level of Constitutional protection or deference as do others asserting other Constitutional rights.

In conclusion, despite the critics who suggest that the bishops are merely trying to impede access to birth control, there are many important legal issues at stake relating to the HHS Mandate. One legitimate concern is whether or not our Constitutional Right to Freedom of Religion is getting the same Constitutional protection and deference as are other Constitutional rights. As an insightful Jesuit Priest concludes (in Spanish): “El Mandato que desmantela el manto de proteccion” de los Catolicos!” (“The Mandate dismantles the mantle of Constitutional protection for Catholic Christians”). Whether or not this might be a bit hyperbolic, it is fair to say that we seem to be getting the second class treatment.

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