Does the Times think religious freedom violates the First Amendment?

By Phil Lawler ( bio - articles - email ) | Feb 25, 2014

How did I miss this? A New York Times editorial stood the First Amendment on its head, and I didn’t even notice. Apparently not many other people noticed, either, because it’s only now been brought to my attention by a friend, three weeks later. Does that mean people have stopped paying attention to the Times editorials? We can hope.

What the Times said, in a February 5 editorial on the HHS mandate, was that the Supreme Court should reject legal challenges by religious-based corporations because a finding for the plaintiffs would violate that First Amendment. What the Times really wants is a more radical Supreme Court decision, striking down the Religious Freedom Restoration Act as unconstitutional. But acknowledging that as unlikely, the editorial argues that the Obama administration should make the strongest possible argument against the Christian employers:

That would be the Constitution’s establishment clause enforcing the separation of church and state and barring government from favoring one religion over another or nonbelievers. But that is exactly what would happen if the restoration act were to be read as a congressional order requiring federal courts to grant private for-profit employers an exemption that would effectively allow them to impose their beliefs on employees to deny them a valuable government benefit.

Actually the First Amendment does not require a “separation” of church and state. The language of the Constitution stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus the First Amendment prohibits the federal government from establishing an official religion. It does not bar individuals (and for legal purposes, corporations are individuals) from establishing their own religions. On the contrary, the government is barred from establishing religion in order to allow individuals to hold and practice their own faiths. Now the Times argues that the First Amendment is violated when individuals practice their beliefs!

In its complaint about the Religious Freedom Restoration Act, the Times editorial cites with approval a law professor’s argument that the legislation is unconstitutional because of “the undue power it confers on religious entities to refuse to abide by valid laws that advance a public good.” Here it is taken for granted that the federal government should be the sole arbiter of what constitutes a “public good,” and the beliefs of religious bodies should not stand in the way. That’s a remarkable argument in itself; what makes it truly astonishing is the fact that the Times justifies this argument by invoking the First Amendment, a constitutional text that says exactly the opposite.