Laws Of General Applicability, Or Why The Church Was All Wet on Contraception

For the past month, debate has raged about insurance coverage for birth control, whether organizations that have a religious objection to covering birth control must nevertheless include coverage in their medical plans and now, more generally, whether employers that have religious or moral objections to birth control can refuse to provide such coverage.  The discourse has grown ugly, with mud being slung at women who have the temerity to defend the need for birth control coverage, pious politicians wrapping themselves deeply in the cloak of the First Amendment and the media, by and large, sitting back with its bag of popcorn, watching the food fight while generating days of cable news and commentary coverage on both sides of the issue.  

And all of this sturm und drang would be well and good had this question not been resolved more than 20 years ago by the Supreme Court.  In 1990, the Court granted certiorari on a case captioned Employment Division v. Smith.  In that case, the Court considered the question of whether the State of Oregon could deny unemployment benefits to the defendant, a Native American who utilized the hallucinogenic peyote as a religious, sacramental rite and was fired from his job because of his ingestion of the substance, which was illegal under state and federal law.  

Smith and his co-defendant challenged the determination of their ineligibility for unemployment, arguing that their use of peyote was protected under the Free Exercise Clause of the First Amendment.  Although they were successful in the lower courts, Smith and his co-complainant lost in the Supreme Court in a decision written by the noted left wing radical and judicial activist, Antonin Scalia. 

Yes, that Justice Scalia.  The same one who issued a concurrence in a case in 2005 that is likely to form the foundation for upholding "Obamacare."  (See, http://scarylawyerguy.blogspot.com/2011/12/my-what-expansive-commerce-clause-you.html).  In a 6-3 decision, the Court ruled in Oregon's favor and Justice Scalia's core rationale was straight forward - that a neutral, generally applicable regulatory law that compelled activity forbidden by one's religion does not violate the Free Exercise Clause.  Justice Scalia cited examples that included the prohibition on polygamy (U.S. v. Reynolds), the requirement that Amish employers collect and pay Social Security taxes even though the Amish faith rejects participation in government programs (U.S. v. Lee), and "Sunday closing laws" that affected those who celebrate the Sabbath on days other than Sunday as laws that were all upheld against similar Free Exercise challenges. 

As Justice Scalia noted, if the Court permitted people to challenge generally applicable laws based on religious belief, the "tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." In other words, pacifists cannot challenge the appropriation of tax dollars for war purposes any more than Mormons can assert they are free to engage in multiple marriages.  Only when the free exercise of religion is tied to another constitutionally protected right will the Court invalidate that law.  So, where "a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious" was challenged, it was struck down because it ran afoul of both the Free Exercise Clause and the right to a free press (Murdock v. Pennsylvania).

So what does all of this have to do with the recent firestorm around requiring religious employers (primarily those affiliated with the Catholic Church) to cover birth control as part of their health plans?  A few things, actually.  First, and most importantly, the idea that this requirement is unconstitutional is complete and utter bullshit.  No matter how much Republicans fulminate on the House or Senate floor about this unprecedented affront to religion, which itself ignored the fact that more than 20 states had similar requirements, 8 of which did not include the so-called "religious exemption" the original, pre-Obama "compromise" in their regulations, the simple fact is that had a religious organization challenged the Obama Administration in court, that group would have lost even if the Administration had not chosen to include the religious exemption at all because the requirement that birth control be covered in insurance plans was applied neutrally and did not otherwise impact other protected constitutional rights as per Smith.  

Need further proof?  None other than the 11th Circuit Court of Appeals, in its decision striking down the individual mandate in Florida v. HHS found that "Congress has legislated expansively and constitutionally in the fields of insurance and health care" citing laws such as HIPAA (patient privacy protection and insurance portability), COBRA (allowing former employees to maintain coverage through their former employers at a premium), ERISA, and Medicare.  In upholding other portions of the Affordable Care Act, the Court noted that "It is clear that Congress has enacted comprehensive legislation regarding health insurance and health care. The Act is another such example."  So even a conservative court that has struck down the individual mandate has also acknowledged that Congress has the authority to pass laws that include regulatory authority that impacts medical insurance coverage.  

And why does this all matter?  Because our country is not a theocracy that allows one religious sect to elevate its interests over others simply because they have a loud microphone and a lot of adherents.  The slippery slope we would fall down if anytime a religious organization objected to a law or regulation because it offended its religious tenets would lead to absurd results where Rastafarians would be free to smoke marijuana, Quakers could withhold their tax dollars to fight wars and Mormons could wed multiple partners.  While Republicans are furiously re-framing this issue as another example of government intrusion into the lives of ordinary, God-fearing Americans, this is a tempest in a teapot over something that was on the books in the majority of states in our nation before the proposed federal regulation and even so, it was well within the government's power to require this coverage.  That the President was willing to provide the accommodation he did was unnecessary, but yet another example of his attempt to meet his foes halfway, something, they of course, will never accept.