Xavier Becerra Would Destroy the First Amendment

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.”

“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 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.

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Continue reading this article published February 24, 2021 at the Acton Institute.