Constitutional Opinions

None to Make Them Afraid?

Washington weighed in on religious liberty.

By From the May 2014 issue

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The justices of the Supreme Court have returned to chambers to make their decision in the latest Obamacare case, and I wonder whether they are going to consult George Washington’s letter to the Jews. He sent it in 1790, at the beginning of his presidency, in reply to the welcome addressed to him by the members of the Touro Synagogue when he had visited Rhode Island.

It’s too bad no one mentioned the letter when the justices sat in March to hear the cases brought against Kathleen Sebelius for imposing the birth control mandate under Obamacare. The cases were brought by two families of religious Christians, the Greens (who own Hobby Lobby) and the Hahns (who own Conestoga Wood Specialties).

It strikes me that the Greens and the Hahns are just the sort of pious persons Washington was welcoming to the new republic when he sent his letter to the congregation of the Touro Synagogue. They are not Jews, of course, but they are determined, as were the congregants of Touro, to live their lives in accordance with religious laws.

Washington wrote of the “days of difficulty and danger” during the Revolution. He wrote about how, if the residents of the new United States simply could find wisdom, they “cannot fail, under the just administration of a good government, to become a great and happy people.” Americans had “given to mankind examples of an enlarged and liberal policy.”

 “All possess alike liberty of conscience and immunities of citizenship,” Washington added, writing that no longer was toleration “spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.” He declared that “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.”

Washington made a point of avowing that he was pleased that the members of the Touro Synagogue had a favorable opinion of his administration and had expressed “fervent wishes for my felicity.” It was a formal, even a bit awkward, but in any event touching note of appreciation.

Then came the famous words. “May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

I have over the years often thought about that sentence, which echoes Micah 4:4 in the Hebrew Bible. It is not an unconditional welcome, as I pointed out in a column recently in the New York Post. Washington prays that the Jews “merit” as well as “enjoy” good will. But neither is it limited to the Jews. The prayer to be able to sit in safety is sought for “every one” so that “there shall be none to make him afraid.”

That word, “afraid,” stands out in Washington’s letter. It is hard to imagine right now that America’s religious families are not afraid. David Green, owner of Hobby Lobby, has spent a lifetime building a company that may be forced to choose between the convictions of its owners and millions of dollars in fines, or even dissolution.

The Hahns, who own Conestoga Wood Specialties, are Mennonites, whose ancestors were driven all over, and even out of, Europe but still did not give up their religious principles. Clearly these families fear that if they participate in or underwrite or insure certain types of birth control, they will have broken God’s laws. In the highest, most admirable sense of the word, they fear God’s judgment. They hold Him in awe. They tremble at the thought of breaking His laws. And the question for the Court is whether they are to be made to fear the Department of Health and Human Services as a consequence? Insofar as I’m aware, no one—not one official—has questioned the sincerity of the Greens and Hahns. Not even Kathleen Sebelius. How can Washington’s prayer not encompass such families? They are not asking to deny anyone birth control or abortion-inducing drugs. They simply do not want to pay for them, and they fear God’s judgment if they do. Why should they be made afraid by their own government?

Is there going to be no place in the American system for them—and, incidentally, the Orthodox Jews who have filed amici briefs on their side? Oh, what a mountain of legal filings the justices are going to have to sort through to get to that question. But make no mistake: that is what this case is about at its heart. It’s not, contra the New York Times, about whether a corporation has religious rights, or whether the Religious Freedom Restoration Act extends to birth control, or whether the state has a compelling interest, or whether the rise of women to the high bench has changed the prism through which the Supreme Court sees the world. 

It is about whether America will make its religious citizens live in fear or leave. Washington clearly considered the question. He eventually warned, in his farewell address, that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

Washington closed his letter to the Jews with a prayer that could serve the Supreme Court well. “May the father of all mercies,” he wrote, “scatter light, and not darkness, upon our paths, and make us all in our several vocations useful here, and in His own due time and way everlastingly happy.” 

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).