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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.

I believe that Scalia’s logic in Smith is sound, but I would be the last person to argue that everyone should defer to his interpretations of the Constitution, and Smith has certainly always had its share of critics. After Smith, a strange-bedfellows coalition of evangelical conservatives and civil libertarians pushed for the passage of the Religious Freedom Restoration Act, which among other things instructed the Court to apply the more restrictive “Sherbert test” that the Court effectively replaced in Smith. The Court struck down that provision of RFRA, but for the sake of argument let’s assume that Sherbert was correct and Smith was wrong, and that the former should be applied. Would the mandate be unconstitutional? Not even close. I believe that the mandate could easily be defended as narrowly tailored to advance a compelling state interest, especially since religious institutions themselves are not covered by the mandate. But it would not be necessary to even answer that question, because the Sherbert test requires that a law represent a “substantial burden” on a person’s ability to act on a sincere religious belief. Such a burden is noticeably absent here. The religiously-affiliated institutions are not even required to provide the insurance directly. As for Catholic employees, most lay Catholics do not follow the Church’s teachings on contraception; on such employees there is no burden at all. Even more importantly, the regulation does not require any individual to use contraception contrary to their religious beliefs, or even to pay more so that they can be covered. Even under a more restrictive standard than the Court is currently applying, in other words, the contraception regulations are plainly constitutional.

For these reasons, Ed Whelan’s arguments based on RFRA are also wrong, because the required “burden” isn’t there. Religious institutions have been reasonably accommodated, subject to regulation only when performing secular functions with taxpayer money for clients and with employees of multiple faiths. And individuals are not burdened at all.

The Court has not developed a more expansive interpretation of the First Amendment for the very good reason that this would immediately lead to absurd results. Can Quakers be exempt from paying federal taxes as long as the United States maintains a standing army? Should the Amish be exempt from paying Social Security taxes? Are bans on plural marriage unconstitutional because they burden the religious practices of some Mormons? A society cannot function if every religious group or individual is a conscience unto themselves, entitled to an exception to any valid general law that conflicts with their religious beliefs. And unless such a transparently useless interpretation is applied, there is no question that the requirement that medical insurance cover contraception is constitutional.

It is certainly understandable that Republicans would like to frame their opposition to the regulations as an issue of “religious freedom,” given how overwhelmingly unpopular their war on contraceptive access is. But these arguments are unserious, and the public understands this perfectly well.

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