Specious Free Exercise Arguments Can’t Hide the War on Contraception

There are a number of problems with Michael Gerson’s column in the Washington Post arguing that the Obama administration’s application of contraceptive coverage requirements to institutions providing secular services but affiliated with religious groups was an “epic political blunder.” For one thing, the entire premise of the column is wrong. The new regulations are in fact extremely popular, and Roman Catholics support the contraception coverage requirements by the same 2-to-1 majority as the population as a whole. In addition, Gerson alleges that the regulations show that Obama is “willing to trifle with the constitutional rights of religious people.”

The argument that the contraceptive coverage requirements violate the Constitution is not unique to Gerson. Republican politicians — led by Senate Minority Leader Mitch McConnell — and pundits alike have argued that the new regulations violate the Free Exercise clause of the First Amendment. But these arguments are specious. Nothing like the reading of the First Amendment invented to oppose the contraception coverage requirements has ever been adopted by the Supreme Court, for the obvious reason that it would be completely unworkable.

Under existing law, a constitutional challenge to the contraception provision wouldn’t even rise to the level of being frivolous. In the 1990 case Oregon v. Smith, in an opinion written by that infamous radical leftist Antonin Scalia, the Supreme Court held that neutral, generally applicable laws are constitutional even if they incidentally burden religious practice. Only if a law intentionally targets a religious practice does it run afoul of the Free Exercise clause. “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The requirement that insurance plans cover contraception is a valid secular objective that is not directed at any religious practice per se, and hence is plainly constitutional. If the mandate applied to religious institutions this might be a constitutional problem, but religious institutions themselves are excluded; only religiously-affiliated institutions that serve secular purposes and hire people of multiple faiths are affected.

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