The Constitution and Religious "Concessions"

The Catholic Thing

By Robert Royal
A crucial presidential election takes place tomorrow. This site operates under tax-exempt, non-profit status, which does not permit us to engage in partisan politics - let alone endorse candidates. But we're The Catholic Thing and have the constitutional right to comment on Catholic things. There are several such things in play this year, especially the proper understanding of religious liberty under the American constitutional order.
What follows here, then, will remain non-partisan. But it's frankly a reaction to an interview that Kamala Harris gave recently in which she was asked whether she would be willing to allow religious "concessions" on abortion. She said no. No concessions on "a woman's right to control her own body."
Catholics already know - or should - how to approach specific moral questions like abortion, LGBT+, parental rights, etc. But there's another large question here about religious liberty, with wide-ranging consequences for our public life. The partisans and poorly formed won't listen. But religious liberty is the first liberty. And without that, all the rest is in doubt.
The very use of the term "concessions" by both the interviewer and Kamala Harris is a liberal, unconstitutional assumption that has done great damage - and not only to the unborn. The American Constitution does not speak of religious liberty as a concession by the government to citizens to do what the government would otherwise control. The First Amendment's protection of religion, speech, assembly, etc.
is simply a recognition of natural rights, rights given us by the Creator, that precede and exceed the authority of every government.
The "right to control your own body" - which is not only a euphemism, but ducks the question of whether there might not be another body involved, with another DNA, a heartbeat, brainwave activity - claims priority even to the First Amendment, an Even-More-First Amendment, as I sometimes think of how it's presented.
Even if you're willing to concede such a legal novelty, what about the rights of others to control their own bodies: e.g., the surgeon who would be forced by law to perform the abortion, but won't because of his religious beliefs; the hospital administrators or nurses or clinic workers who likewise won't help kill a baby in the womb because they know innocent human life is never to be deliberately destroyed?
This whole question of whether the U.S. government can issue concessions for religious belief and conscience - or not - was already settled when George Washington wrote a letter to the Newport, Rhode Island, Touro Synagogue, which he visited in 1790. Moses Seixas, the Warden of the synagogue, later wrote to Washington asking for assurances of religious freedom for Jews.
Washington could have granted the request - if he believed the federal government had such authority. He did not.
Instead, he wrote back invoking principles, American principles, that deny the very idea of government granting "concessions" to religious liberty:
All [American citizens] possess alike liberty of conscience and immunities of citizenship.
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
This notion of "concessions" is far from being the only way that we offend against our own Constitution by curtailing a God-given right. Politicians currently love to speak of threats to the Constitution and "democracy" - if we elect someone else. But the very same people often talk of abolishing the electoral college, a constitutional mechanism, without understanding how it preserves a better form of democracy.
Because while it's tr...