Acton Institute Powerblog

Xavier Becerra would destroy the First Amendment

Xavier Becerra listens during a confirmation hearing to be Secretary of Health and Human Services before the Senate Health, Education, Labor and Pensions Committee, Tuesday, Feb. 23, 2021 on Capitol Hill in Washington. (Photo credit: Sarah Silbiger/Pool via AP)

If Xavier Becerra wins confirmation as secretary of Health and Human Services, he will make history, because Becerra would likely become the first Cabinet secretary to believe the First Amendment does not grant churches the freedom of religion. Such an extreme view, endowed with the full power of the federal government, would vitiate the religious liberty of all Americans.

For those tempted to dismiss this as a caricature of Becerra’s position, allow him to dispel that notion – under oath. When California Assemblyman James Gallagher raised Becerra’s views of religious liberty during his confirmation hearing to succeed Kamala Harris as attorney general of California, Becerra hastened to clarify: “The protection for religion is for the individual, and so I think it’s important to distinguish between protections that you are affording to the individual to exercise his or her religion freely, versus protections you are giving to some institution or entity who’s essentially bootstrapping the First Amendment protections on behalf of somebody else.” You can watch the exchange below, courtesy of the California Family Council:

“Bootstrapping,” of course, means to substitute an entity that does not belong in place of one that does. Becerra accuses churches of pulling off a sort of constitutional Three-card Monte trick, slipping themselves into the constitutional liberties promised only to individual Americans. In Becerra’s blinkered view, you and I have each have an individual right to the free exercise of religion, but if we join forces to exercise that right more effectively, it suddenly evaporates. The whole is far less than the sum of its parts. His view betrays an ignorance of both the Church and the Constitution.

First and foremost, a church is people. The Greek word translated as “church” in the New Testament, ἐκκλησία (ekklesia), in classical Greek meant any “gathering of citizens called out from their homes into some public place,” or “an assembly.” In a specifically Christian context, it came to mean those who had been called out of the world by the Gospel of Jesus Christ. The same word is substituted in the Greek translation of the Old Testament, known as the Septuagint, for the Hebrew word describing a gathering of Jewish people (קָהָל or qahal).

Although the Bible reveals the Church to be a theanthropic institution, no congregation can be separated from the people who make it up. A modern-day church or synagogue could define itself as a collection of individuals who exercise their First Amendment rights in collective acts of worship, consecration, and service. Those people do not shed their rights at the door of the church, the nonprofit, or the corporation.

Furthermore, the Supreme Court has already settled whether the First Amendment applies to churches – thanks in large part to the fractious history of my own Eastern Orthodox Church. In the 1952 case Kedroff v. St. Nicholas Cathedral, the justices affirmed any law which “prohibits the free exercise of an ecclesiastical right” is “contrary to the principles of the First Amendment.” Constitutional jurisprudence established “a spirit of freedom for religious organizations, an independence from secular control or manipulation – in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” (Emphasis added.)

The High Court subsequently quoted this in another case involving Orthodox Christians, in 1976, in a decision written by Justice William J. Brennan and ratified by every member of the court who had also affirmed Roe v. Wade. Since evangelical, Catholic, and other pro-life nominees are continually badgered about whether their private views hinder their ability to do their job, shouldn’t Becerra be asked whether his very public stance as chief law officer of the nation’s most populous state might infringe on the rights of religious Americans?

They need not ask: They can simply observe his record. As California’s attorney general, Becerra led court challenges against churches seeking an exemption from Gov. Gavin Newsom’s harsh and restrictive COVID-19 orders banning singing, chanting, and all indoor worship services. The Supreme Court struck down these restrictions, which one Orthodox archbishop compared to the Soviet Union’s suppression of religion, in a 6-3 decision on February 5.

“Xavier Becerra has a long track record of hostility to religious freedom,” said Mike Berry, general counsel to the First Liberty Institute. “As California Attorney General, Becerra repeatedly attacked religious freedom protections for healthcare professionals and declared those protections ‘offensive’ and ‘dangerous.’”

Becerra’s entire career testifies to his disregard for the rights of individuals who join together to pursue their rights corporately – especially if they are people of faith. He unsuccessfully sued the Little Sisters of the Poor for resisting a government mandate to participate in the provision of potentially abortifacient contraceptives to fellow nuns. He insisted the next logical step after respecting conscience rights would be to “allow businesses to deny you cancer treatment.”

His hostility extends beyond overtly religious organizations. Becerra tried to force pro-life women’s resource centers to refer women to the state’s “free or low-cost access to … abortion.” The Supreme Court ruled that such an ordinance violated the organization’s First Amendment rights by constituting a form of compelled speech in 2018’s NIFLA v. Becerra. He has similarly threatened to compel other nonprofit organizations to steer their philanthropic giving to causes of which he approves, such as building the “equity” of minority groups, or face legislative backlash.

Becerra’s disdain for unalienable rights most clearly manifests itself on the issue of abortion. Becerra voted against a partial birth abortion ban, against making it illegal to transport a minor across state lines to procure an abortion without parental consent, and against penalizing those who kill an unborn child in the commission of another crime. When undercover journalists David Daleiden and Sandra Merritt exposed Planned Parenthood selling the body parts of aborted children in apparent violation of the law, Becerra prosecuted Daleiden and Merritt.

Becerra would represent a return to the Obama-era policy of minimizing the First Amendment right to religious liberty. The 44th president reduced freedom of religion to “freedom of worship” both rhetorically and as a matter of policy. The secular state sought to constrain the church within the most circumscribed sphere possible, thus expanding the room available for state regulation. Becerra would accelerate the state’s attempted displacement of the church by striking at the heart of religious liberty, the First Amendment.

Becerra breezed through his first day of confirmation hearings on Tuesday so smoothly that one of the Republican senators  absent-mindedly referred to HHS employees as Becerra’s “staff.” Today and in the days ahead, members of the Senate Finance Committee, the full U.S. Senate, and all Americans can – and must – ask probe Becerra about his hostility to the free exercise of religion.

Rev. Ben Johnson

Rev. Ben Johnson (@therightswriter) is an Eastern Orthodox priest and served as Executive Editor of the Acton Institute (2016-2021), editing Religion & Liberty, the Powerblog, and its transatlantic website. He has extensively researched the Alt-Right. Previously, he worked for LifeSiteNews and FrontPageMag.com, where he wrote three books including Party of Defeat (with David Horowitz, 2008). His work has appeared at DailyWire.com, National Review, The American Spectator, The Guardian, Daily Caller, National Catholic Register, Spectator USA, FEE Online, RealClear Policy, The Blaze, The Stream, American Greatness, Aleteia, Providence Magazine, Charisma, Jewish World Review, Human Events, Intellectual Takeout, CatholicVote.org, Issues & Insights, The Conservative, Rare.us, and The American Orthodox Institute. His personal websites are therightswriter.com and RevBenJohnson.com. His views are his own.