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Thank Scalia For Your Birth Control Coverage (Seriously)

By Jesse Taylor
Wednesday, February 8, 2012 14:52 EDT
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If you’ve been listening to cable news for the past few days, two things immediately leap out at you. The first is that there are a lot of pundits who are willing to speak for lay Catholics’ simmering sense of outrage at the Obama Administration’s decision to mandate contraceptive coverage for Catholic hospitals and other non-clergy religious employers. The second is that this decision violates the free exercise rights of Catholics guaranteed under the First Amendment.

As Michelle Goldberg points out, it’s hard to argue that the Catholic Church is somehow suddenly burdened by a rule virtually identical to the rules it complies with in twenty-eight other states. Currently lacking our future moon republics promised by Newt Gingrich, that’s easily the majority of states.

At a more fundamental level, though, the HHS rule simply doesn’t violate a cognizable free exercise right. In 1990, the Supreme Court decided a case called Employment Division v. Smith, 494 U.S. 872 (1990). Two men, members of the Native American Church, used peyote in their rituals. They were employed in Oregon as counselors at a private rehab clinic. Oregon outlawed peyote, with no exception for religious use. The men were subsequently fired once their drug use was discovered, and applied for unemployment benefits. The state of Oregon denied them benefits because – guess what? – they were fired for committing a crime under state law, and had committed work-related misconduct.

The case found its way to the Supreme Court, where the court set down a new rule. The standard for determining if a regulation burdened the free exercise of a religious adherent or organization was whether the law was neutral toward religion and generally applicable, lacking any pretext designed to obscure a hostility toward religious practice. The court even stated that to permit otherwise under the First Amendment “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The author of this religion-destroying opinion? Noted Catholic Antonin Scalia. 

And you know what? This makes perfect sense. If a private citizen or organization can escape laws that incidentally burden their religious practices, religion becomes a literal “Get Out of Jail Free” card. The purpose of the Constitution wasn’t to subsume the rest of society to the wishes and whims of religious practitioners, it was to provide those practitioners a safe space to practice their faith free from direct government interference or mandates.

The burden on the Catholic Church is incidental, at best. The Church is required to provide health insurance coverage to their employees in the same manner as any other employer hiring the same people to perform the same jobs. That it offends them to do so is not unconstitutional.

Whatever the political fallout, the Obama Administration is on the right side of this, legally. And they’ve got lovable ol’ Antonin to thank for it.

UPDATE: Via Felwith, in comments:

It makes perfect sense, but unfortunately it’s no longer the law of the land, at least as far as the federal government is concerned. The Religious Freedom Restoration Act passed in 1993 which required laws that restricted free exercise of religion to pass strict scrutiny, and while the Supreme Court ruled that it couldn’t apply to the states, in 2006 they did rule that it did apply to the federal government. So if this does go to court, I don’t really like their chances.

It’s bullshit, though, since there are many Catholic institutions that already provide contraception coverage to their employees without whining about it. Unfortunately, I don’t think the administration can successfully argue “But that’s not *really* a Catholic belief” in court, even though it’s the truth.

The government would then have to show that it had a compelling interest in its regulation of Catholic hospitals and charities, and that the means of achieving the interest were narrowly tailored to the goal.

Thanks for negating my post, law. And Felwith. Hrmph.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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