What do the FBI’s attempt to force Apple to help it hack a terrorist’s iPhone, the Obama administration’s conscription of religious organizations to provide abortion-inducing drugs, and the constitutional right not to house soldiers have to do with one another?
At issue in both the phone-hacking and abortion-drug mandate cases is the principle our Founding Fathers recognized in the seemingly antiquated Third Amendment to the United States Constitution: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
We all learned in history class (in any school that actually still teaches the Constitution) this amendment was adopted in response to colonists being forced to house and feed British troops in their homes and businesses. It was one of the “Intolerable Acts” that led to the Revolutionary War.
At first blush, it seems to have little remaining relevance (there’s never been a Supreme Court case considering it, and only one lower court has), but the principle that government cannot commandeer private entities without their consent is clearly applicable in today’s environment of ever-expanding government power—as evidenced in these two cases.
How Much Can Government Force You to Do?
The federal court in central California will consider Apple’s privacy concerns on March 22. The following day, 37 religious organizations—including a number of Christian colleges represented by Alliance Defending Freedom and the Little Sisters of the Poor represented by the Becket Fund—in Zubik v. Burwell will defend their right to religious freedom before the United States Supreme Court. In both cases, the government says its interests trump the rights at issue.
But Apple and the religious organizations in Zubik contend the government is not allowed to force private companies to help it accomplish its purposes if that means violating fundamental freedoms and when there are less intrusive and coercive options available. Apple notes that the FBI could enlist the aid of other governmental agencies like the National Security Agency. The religious organizations assert correctly that the U.S. Department of Health and Human Services (HHS) can distribute abortifacients in myriad other ways, including through Medicaid and health-care exchanges established by federal and state governments.
Like colonists being forced to house the very troops that were oppressing them, religious organizations like Geneva College, Southern Nazarene University, Priests for Life, and Little Sisters of the Poor believe it is morally wrong to be forced to “house” employee health-care plans that would “feed” abortion-causing drugs to their employees. Similarly, Apple believes being compelled to build a backdoor into password-protected phones would wrongly place privacy rights in jeopardy.
Both Apple and the religious organizations hold deep convictions about the rights they are defending—rights foundational to freedom and the republic. Privacy is protected by the Fourteenth Amendment to the U.S. Constitution, and religious liberty is enshrined in the First Amendment, as well as in the federal Religious Freedom Restoration Act and similar state laws around the country. The Supreme Court has ruled that the Constitution closely guards both privacy and religious freedom for the same reason the Third Amendment was adopted—because limited government is vital to representative government.
Government Can’t Take the Easy Way Out
The Third Amendment teaches that government doesn’t have the power to force us to assist without our consent unless it has very compelling reasons, like during a time of war, and then only in a narrow manner consistent with rules prescribed by law. While it’s crystal clear in the abortion-pill mandate case at the Supreme Court that the government hasn’t met this standard, it’s unclear in Apple’s case whether the government’s interests rise to that level. Fighting terrorism certainly has national security implications. But is the narrowest way to accomplish that forcing Apple to hack into its own phones? Or is it just the easiest?
Ironically the FBI’s goal of saving lives in the Apple case aligns with the religious organizations’ interest in saving unborn lives Zubik. They refuse to allow their health plans to be used to provide drugs like Plan B that can kill humans at the earliest stages of life. HHS has an interest in protecting health as it understands “health.”
But the demand that these religious organizations offer access to what the HHS has determined is “necessary healthcare” is undermined by the many exceptions they already allow to the abortion mandate. A number of multi-billion-dollar secular corporations, and even some government-administered health plans, are exempt from the mandate. But Christian schools, nuns, and priests aren’t?
Even if the government could show providing abortifacients is vital to protecting national health (it hasn’t succeeded so far), there are numerous ways to accomplish that goal other than forcing religious organizations to provide drugs that violate their conscience. So far the government has only said those ways might be more difficult, but certainly not impossible.
That clearly doesn’t pass the test. We have the right to keep the government out of our homes, businesses, and religious life. Mere convenience isn’t enough to justify violating this right.