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Kamala Harris' Crusade Against Freedom of Religion

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Elise Amendola

Do you have a right to run your business in keeping with your moral and religious values? Or can the federal government force you to act against your conscience and the teachings of your faith? Can the government force you -- because you own a for-profit enterprise -- to cooperate in the taking of an innocent human life?

Sen. Kamala Harris of California believes the government ought to have that power. She has made it one of her crusades.

After President Barack Obama signed the Patient Protection and Affordable Care Act in 2010, his Department of Health and Human Services issued a regulation requiring all health insurance plans to cover sterilizations and all Food and Drug Administration-approved "contraceptive methods."

Some of these so-called contraceptives acted post-conception -- aborting the life of a newly conceived human being.

Catholic moral teaching, of course, opposes sterilization, artificial contraception and abortion. Thus, no faithful Catholic could conscientiously obey this regulation.

Many other Christians objected to at least the abortifacients it required.

The controversy the regulation caused should have been settled by simply looking at the First Amendment.

It says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Clearly, a regulation that forces Christians to act against their faith violates the First Amendment.

Yet Congress had enacted a law in 1993 that expressly authorized the government to violate the free exercise of religion.

The ironically titled Religious Freedom Restoration Act says: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person ... 1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

In 2014, Hobby Lobby, a family-owned corporation, brought a case to the Supreme Court arguing that the Obamacare abortifacient mandate violates the free-exercise rights of its Christian owners by forcing them to provide insurance coverage for abortion-inducing drugs and devices.

Harris was then the attorney general of California. She believed Hobby Lobby should be forced to cover abortion-inducing drugs and devices.

She wrote a brief urging the Supreme Court to take up the case and, when it did, joined with the attorney general of Massachusetts to write an amicus brief arguing that the court should force Hobby Lobby to cover abortifacients.

This premise lurked at the foundation of her argument: When people start for-profit corporations, they must leave their "personal" religious beliefs behind.

In her amicus, Harris suggested that the free exercise of religion is a right created by manmade statutes -- not God -- and is a "personal" thing that should be kept in an "inner sanctum."

"Rights to the free exercise of religious beliefs, whether created by statute or by the Constitution, likewise protect the development and expression of an 'inner sanctum' of personal religious faith," she wrote. "Free-exercise rights have thus also been understood as personal, relating only to individual believers and to a limited class of associations comprising or representing them."

"Unsurprisingly," she continued, "there is no tradition of recognizing or accommodating the exercise of such inherently personal rights by ordinary, for-profit business corporations."

It would be better, in her view, to keep the "free exercise of religion" within the boundaries of "religious institutions."

"Individuals commonly practice their religions at least in part collectively, in or under the auspices of religious institutions," she wrote. "The term 'religion' itself connotes a 'community of believers."

"Religious organizations," she argued, "act as 'critical buffers between the individual and the power of the State,' giving individuals a space in which to exercise faith without state intrusion."

With the pro-Roe Justice Anthony Kennedy as the swing vote, the court ruled 5-4 in favor of Hobby Lobby.

Justice Samuel Alito wrote the court's exceedingly narrow opinion. It concluded that under the Religious Freedom Restoration Act, the Obamacare abortifacient mandate did in fact "substantially burden" the free exercise of religion by Hobby Lobby's owners. It then assumed -- without conclusively deciding the issue -- that the regulation also furthered a "compelling government interest" in the distribution of contraception.

The regulation failed, however, because the five justices determined it was not the "least restrictive means" of advancing that interest. The government, the court said, could give private businesses the same accommodation it gives nonprofits -- and have their insurance companies provide the contraceptives directly rather than through a company's insurance plan.

Sen. Kamala Harris was outraged. In 2017, she introduced the disingenuously named Do No Harm Act, which would, among other things, completely nullify any First Amendment protection for Christian business owners who do not want to be forced to act against their faith in providing abortion-inducing drugs and devices.

Last week, Harris re-introduced the bill in this Congress.

It says that the Religious Freedom Restoration Act would not apply "to any provision of law or its implementation that provides for or requires ... coverage for, any health care item or service."

In a press release promoting this bill last week, Harris indicated the First Amendment protects something she calls "freedom of worship."

"The freedom to worship is one of our nation's most fundamental rights," she said.

But she apparently will not tolerate American families who own businesses freely exercising any religion that teaches them it is evil to cooperate in the taking of an innocent life.

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