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More on the unconstitutional consumer mandate

April 26, 2010 - Mike Maneval

About 12 days ago, I weighed in on the constitutionality of the mandate on consumers to purchase health insurance included in the sweeping health care reform bill. But the mandate violates the Bill of Rights in a way I did not examine, and to which I wish to return.

The bill acknowledges it skates right up to the edge of one violation of the First Amendment with an exemption for "religious conscience." Under our systemic respect for civil liberties, the federal government can't prohibit the free exercise of individuals' religious tenets. As a number of religions, including the Church of Christ, Scientist, shun medical treatment, a consumer mandate without the religious exemption would clearly be unconstitutional.

But the exemption isn't just about the right to decline to participate in modern medicine. The Amish and Mennonite sects are allowed to claim the exemption as well, the Watertown Daily Times, a newspaper in upstate New York, reports. These sects do not decline modern medical practices but preach a strain of self-reliance and independence from outside institutions.

So who else qualifies for the exemption? A better question may be ... who doesn't?

The First Amendment's protections of religious liberty include two clauses: The free-exercise clause and the establishment clause. Permitting the Internal Revenue Service to assess and review the professed religious beliefs of Americans and the sincerity of their practice of said beliefs to, well, establish which religious philosophies are legitimate and who can legitimately claim adherence to qualifying religious doctrines violates the second clause. It is not the role of the IRS - or any other agency or office of any government - to determine which religions are valid, even for a narrow purpose such as the enforcement of the mandate.

The federal government has no recourse to gather information for the purpose of determining certain religious groups are entitled to more rights - the right not to purchase insurance - denied to taxpaying Americans of faiths deemed insufficient. It has no power to make such determinations, winnowing Americans into first-class citizenship and second-class citizenship by religious belief. And it has no authority to deny any American a privilege preserved for other Americans by establishing some religions as preferable. In summary, the First Amendment's establishment clause prohibits the consumer mandate.



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