Originally published in Standpoint.

In Memorial and Remonstrance, James Madison anticipated America’s First Amendment protections for religious liberty by proclaiming an “unalienable right” publicly to worship God in freedom — without government meddling. “Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.”

In a religiously diverse society, Madison’s principle created a compact for civic peace.

President Obama’s healthcare plan, by radically redefining one’s duties to Big Government, threatens to send the compact into the shredder. The administration insists that Catholic and other religious institutions must fund a full range of birth-control services in the health insurance plans they offer their employees — regardless of whether they consider such services morally objectionable.

The ruling has unleashed a hailstorm of criticism — enough to force Team Obama to announce an “accommodation” that would shift the emphasis to insurance companies. Many see this as an accounting gimmick, however, because Catholic organisations would still be forced to subsidise drugs and procedures that violate Church teaching, including sterilisation, contraception, and drugs that induce abortion. The US Conference of Catholic Bishops has denounced the law as a violation of religious freedom, and pledges to oppose it.

For now, at least, the legislation exempts churches, synagogues, mosques and other houses of worship on the basis of religious conscience. But the burden will fall upon all religiously-affiliated organisations: colleges, universities, hospitals, clinics, charities and other faith-based groups. Failure to comply will result in fines of $2,000 per employee.

The administration insists that most Catholics use birth control and that no one is forced to buy contraception under the law. The argument misses the point entirely: the First Amendment, as interpreted by numerous Supreme Court rulings, places a severe burden on government before it may limit religious freedom. With birth control and abortion so widely available, what rationale — other than a demand for ideological purity — justifies state discrimination against religiously-affiliated organisations?
The ruling, which would come into effect next year, could help shape the outcome of the presidential race. House Republicans vow to overturn the measure and Republican presidential candidates such as Rick Santorum, a Catholic, are promising to “make it an issue every day of this campaign”. Timothy Dolan, Cardinal Archbishop of New York and president of the US Catholic Bishops’ Conference, warns of further attacks on religious liberty. “When the government tampers with a freedom so fundamental to the life of our nation,” he says, “one shudders to think what lies ahead.” Despite token concessions by Obama, the plan looks likely to go ahead.

What lies ahead is an Orwellian legal regime underwritten by a creed of uncompromising secularism. Under the nomenclature of “health”, “choice”, “access” and “prevention”, the sanctity of religious conscience is now up for grabs. The problem is not merely the privatisation of religious belief. By refusing to exempt church-based groups from the law, the state is deciding which bodies carry out a “religious” mission worthy of legal protection and which do not.

Put simply, the Obama administration is prepared to criminalise religious views that fall foul of its social agenda.

James Madison had a name for that. “The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants,” he warned. “The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.”

Joseph Loconte is an associate professor of history at The King’s College in New York City and the author of the forthcoming book The Searchers: A Quest for Faith in the Valley of Doubt.