The Contraceptive Mandate

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Opposition to Health and Human Services’ rules on coverage of contraception under the Affordable Care Act is no longer just a Catholic thing. Last week, a collection of the evangelical elite plus the heads of the leading Orthodox Jewish groups wrote a letter to President Obama protesting the mandate as a violation of their institutions’ free exercise rights: “We believe that the Federal government is obligated by the First
Amendment to accommodate the religious convictions of faith-based
organizations of all kinds, Catholic and non-Catholic.”

But there actually appears to be no such obligation in this case, thanks to Antonin Scalia’s majority decision in Smith v. Employment Division (1990). Smith says that free exercise claims cannot be made against “a neutral law of general applicability,” and the HHS mandate looks altogether neutral and generally applicable. That is, it requires all providers of health insurance to cover contraceptive services, even as it permits HHS to make discretionary exceptions for religious institutions. The opponents think the exceptions are too narrow, though they do not agree on how much broader they ought to be. Meanwhile, the mandate has its fervent supporters. Welcome to the culture wars, Obamacare!

Last month, meanwhile, as part of the push-back, Belmont Abbey College, a small Catholic institution near Charlotte, filed suit against the government claiming that the contraception mandate violates its religious liberty. The complaint, which has now been joined by Colorado Christian University, a Denver-based evangelical institution, is the work of the Becket Fund, the prominent conservative legal outfit; and an interesting document it is. Along with making a weak argument that the HHS mandate is neither neutral nor generally applicable, the complaint contends that it violates the 1993 Religious Freedom Restoration Act. That act, which sought to overturn the Smith standard, was declared unconstitutional by the Supreme Court in 1997.

By invoking “strict scrutiny”–the prior standard of review that requires the finding of a “compelling state interest” in order to disallow a a free exercise claim–the complaint directly invites the Court to reverse itself either on RFRA or on Smith itself. And it would be a good thing if it did. I say this not because I think the contraception mandate should be declared unconstitutional. Rather, it’s because the alternative to Court review is to make a consequential church-state issue the plaything of the politics of the moment.

Whatever one thinks of strict scrutiny in free exercise cases, it provides a principled basis by which our society can balance a religious liberty claim against the interest of society at large. Consider whether an institution run by Jehovah’s Witnesses should be permitted not to cover blood transfusions in its health care plan. It would be better for the Supreme Court to turn thumbs down by enunciating a compelling state interest in protecting life–as distinct from permitting religious institutions to opt out of providing contraceptive coverage–than to allow the decision to be made simply because, in an election year, there are lots more Catholics and evangelicals than there are Jehovah’s Witnesses.

Increasingly, religious actors are making free exercise claims against neutral and generally applicable laws that, under Smith, they have no basis for making in courts of law. By tossing such claims into the political arena, the Supreme Court has effectively established the principle that the religious liberties of the many are more important than the religious liberties of the few. That’s a disgrace. It’s time for Smith to go.