In Civil Loneliness

Religion and the U.S. Government Have Long Coexisted But Not Always Harmoniously

A recent decision by the Obama Administration to include religious healthcare providers in an existing Department of Health and Human Services mandate has resulted in a firestorm of protest. The mandate states employers must provide women employees with health insurance that covers contraceptives at no cost.

The American Catholic Bishops, social conservatives, and most of the Republican Presidential candidates have all accused the President of declaring “war on religion.” They call the mandate illegal and Unconstitutional, claiming it violates religious freedom as guaranteed by the First Amendment. They say the issue is not about contraception but the intrusion of federal government into freedom of religious expression.

Religion and the U.S. government have
long coexisted but not always harmoniously

A review of history suggests Obama’s mandate is both legal and Constitutional. It may well be a war on a religious principle/practice but history also vindicates this so long as it is not a war against a specific religion(s) in order to promote other religion(s).

The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Its literal interpretation prohibits the establishment of a national religion by Congress. A more general interpretation prohibits preference for one religion over another by the U.S. government. However, the Supreme Court has never interpreted it to prohibit civil authorities from exercising control over practices effecting society just because some people see those behaviors as part of their religious beliefs.

Anyone who thinks U.S. history is free from government intrusions into religious freedom is unfamiliar with the story of Utah’s admission to Statehood. This example seems particularly germane since Mitt Romney, a practicing Mormon, is one of the Obama Administration’s critics on the matter of contraception.

Utah was designated an official U.S. territory in 1850, with Mormon leader Brigham Young appointed its first territorial governor. A few years later, the Church’s position on “plural marriage” (i.e. polygamy) became widely known. Public reaction was strongly negative.

Aversion to polygamy had some roots in lurid stories regarding women coerced or tricked into plural marriage, the marriage of girls as young as ten to much older men, and even incestuous marriages. Some documentation suggests instances of these charges actually occurred. Other documentation reflects a carefully regulated system overall.

However, the bulk of objections centered on such marriages as disrespectful and even abusive to many of the women who participated in them, even if they did so for reasons of duty. They were compelled to submit to religious law even though it violated their personal principles/feelings. The Mormon historian Todd Compton documents the sufferings of these women in his book In Sacred Loneliness.

Another objection arose because the Mormon men most likely to practice polygamy were older, wealthier, and often in high Church positions. Their tendency to marry younger women reduced the number of eligible females and left more young Mormon men bachelors. This underscores the fundamental importance of marriage to society as a means of creating stable families over that of procreation.

By 1856, President James Buchannan replaced Young with a
non-Mormon governor and dispatched twenty-five hundred federal troops to Utah to ensure his authority. Mormons resisted this fiercely, resulting into the so-called Utah War.

In 1862, Congress passed the Morrill Anti-Bigamy Act, which forbade plural marriage in all U.S. territories. President Abraham Lincoln signed the bill into law but told the Mormons he did not intend to enforce it. Tensions slumbered for many years until 1879, when the Supreme Court upheld the Morrill law in the case of Reynolds v. United States. Then, in 1882, a Mormon Church leader was denied a seat in the House of Representatives as Utah’s territorial representative because he was an active polygamist.

Congress responded to outrage by Mormons over this slight with the Edmunds Act. This draconian law raised polygamy to a felony, punishable by a $500 fine and five years in prison. Mormon polygamists earned a status similar to modern day enemy non-combatants. The law forbade them to vote or hold office. It provided for punishment without due process – forcing wives to testify against husbands and witnesses to appear in court without subpoenas. The law revoked rights not only for practicing polygamy but also for failure to swear an oath renouncing it.

When even this failed to budge Church leaders, Congress responded with the 1887 Edmunds-Tucker Act. This law dis-incorporated the Mormon Church, confiscated its properties, and even threatened seizure of its temples. This caused a variety of Mormon elders – including one George Romney, a distant relative of Mitt – to sue the federal government for overstepping its bounds and impinging on their religious expression.

In 1890, the Supreme Court ruled in LDS Church v. United States to affirm Edmunds-Tucker by a six-to-three majority. Even the dissenters, led by Chief Justice Melville Fuller, agreed that declaring polygamy illegal was Constitutional. As regards the First Amendment, Justice Joseph Bradley had this to say about the rights of the government to act over religious objections in his blistering majority opinion –

One pretense for the [Mormon Church’s] obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the Constitutional guaranty of religious freedom. This is altogether a sophistical plea.

No doubt, the Thugs of India imagined that their belief in the right of assassination was a religious belief but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by the civil authority.

The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of Mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced.

Later that year, Mormon Church president Wilford Woodruff issued a Manifesto banning plural marriage. The Church insisted the ban resulted from divine revelation in a dream on Woodruff’s part. However, it seems clear the U.S. government saw an objectionable practice occurring in one of its territories and used ever harsher and more intrusive means to force its abolishment, despite its religious nature.

Nineteenth Century Mormon policies regarding polygamy have obvious similarities with present-day Catholic polices regarding contraception. In both cases, they were/are intensely unpopular with many Americans outside their respective faiths. In both cases, a majority of these religions’ actual adherents did/do not follow the official policy – best estimates are that no more than twenty-five percent of Mormons engaged in plural marriage and most modern U.S. Catholic women say they have used/use contraceptives.

There is one big difference, however. Traditional Christianity, the majority religion in this nation, did not approve of polygamy. It was in rapport with the U.S. government on abolishing the practice. In the case of contraception, it is a traditional Christian sect’s principles that are discordant with civil authorities.

As Sarah Jaffe notes at AlterNet, “When white evangelicals and Catholics claim that Obama’s declaring a war on religion, they mean on their religion.” Apparently, this is less about religious freedom and more about contraception than those objecting to the mandate care to admit, perhaps even to themselves. Yet the legal principle remains the same and is perfectly Constitutional. As Justice Bradley voiced so long ago, a law that is objectionable to a religion is permissible so long as its primary intent is not attacking that specific religion but promoting the common welfare.

The Supreme Court has reinforced this doctrine as recently as 1990. In Oregon v. Smith, Justice Scalia, a Catholic, states in his majority opinion, “The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

In the case of polygamy, the common welfare was the decent treatment of women within the institution of marriage. When announcing the earlier mandate for employer-provided contraception, DHHS Secretary Kathleen Sebelius explained, “Scientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women. This rule will provide women with greater access to contraception by requiring coverage.”

Religion and the U.S. government have long coexisted along lines of mutual respect. However, that coexistence has not always been harmonious and while the government has deferred to religious liberty in many situations, there are others when it has used the full force of its authority to oblige compliance.

Critics of the new mandate certainly may continue to argue that contraception is immoral. However, this is not the current law of the land nor perceived as benefiting the common welfare. In a twist on the Mormon women of polygamous unions, this law's critics are doomed to suffer in civil loneliness until they can change perceptions. Their legal argument that the First Amendment protects them from complying with any laws they deem immoral has no practical, historical basis.