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In 1990 the Supreme Court ruled in the case of two men, Alfred Smith and Galen Black, who had been fired from their jobs at a drug-rehab center because they took peyote as part of a Native American religious ceremony. The state of Oregon denied their claim for unemployment compensation because they’d been discharged for “misconduct,” and they sued, claiming that their religious freedom had been violated. Oregon’s Supreme Court sided with Smith and Black, but in a decision authored by Antonin Scalia, the high court ruled against them.
The court, Scalia wrote in Employment Division v. Smith, has “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Scalia’s opinion approvingly quoted an earlier ruling by Felix Frankfurter: “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” In other words, the First Amendment doesn’t give believers the right to skirt valid laws.
Now, in a series of lawsuits filed across the country, Christian organizations are asking the courts to rule otherwise. On Monday, 43 religious institutions filed 12 simultaneous lawsuits against the Obama administration’s mandate that health-insurance plans, including those offered by religiously affiliated employers that hire and serve people of other faiths, cover contraception. “If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government’s power,” says the suit brought by the University of Notre Dame. “Such an oppression of religious freedom violates Notre Dame’s clearly established constitutional and statutory rights.” The organizations suing the administration believe, to paraphrase Scalia, that they should be exempted from federal law because it prescribes conduct that their religion proscribes.
For conservatives on the Supreme Court to rule against the Obama administration, they’d have to break Scalia’s own precedent. “It’s a situation where [Scalia] is going to have to make the cat walk backwards in order to get to a place that would side with the plaintiffs,” says George Washington University Law School professor Jonathan Turley, a well-known civil libertarian.
Ironically, Scalia and his ideological allies could be helped by a law that was passed in direct response to his unpopular ruling in Smith. The Religious Freedom Restoration Act, which Bill Clinton signed in 1993, required the government to show a “compelling interest” in infringing on religious practices, and, where such infringement is necessary, to do so in the least burdensome way possible.
At first the Catholic Church actually opposed the law, arguing that it could enshrine the right to abortion for those who claimed that their religion permitted it. Eventually, the language was changed to make it clear that abortion wasn’t protected, the Catholic Church got on board, and the law passed by huge margins.
The lawsuits against the Obama administration all assert that, in addition to violating the Constitution, the contraceptive mandate runs afoul of the 1993 law. Many liberal advocates think this is a stretch. “We maintain there’s no burden on religion here, but even where there is a burden on religion, there’s no RFRA violation where the law serves a compelling government interest,” says Sarah Lipton-Lubet, policy counsel at the ACLU. “Here, it’s really clear that acquiring coverage of contraception serves a compelling government interest in ending gender discrimination.”
But the Religious Freedom Restoration Act gives conservatives on the Supreme Court a way to rule against the administration without reversing Scalia, since they could find that the contraceptive mandate violates federal law rather than the Constitution. At the same time, of course, they could simply disregard Scalia’s earlier opinion. “The government has the clear advantage in the lower court,” says Turley, “but all bets are off once you get to the Supreme Court since it is not bound as much by precedent, even though they try to maintain precedent.”
Should the court find for the plaintiffs, the implications could be far-reaching. “The upshot is that any institution that is run in any way by a religious organization will have a constitutional right to impose all aspects of their worldview on that institution,” says Marci A. Hamilton, a professor at the Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law.
“There’s this sleight of hand that the Catholic Conference of Bishops has been using for several years now, and this is the most aggressive use of it I’ve seen so far.”
The Catholic hierarchy has often argued, for example, that religious liberty should allow it to discriminate against gay people in its government-funded housing and adoption programs. Bob Jones University once claimed that it had a First Amendment right to prohibit interracial dating without losing its tax-exempt status for violating federal civil-rights law. Hamilton points out that though she isn’t Jewish, her law school is part of Yeshiva University. “On their theory, the university could and should be able to tell me what to wear, whether my hair should be exposed and whether or not I’m going to go out on a Friday night,” she says.
“The key for the American public is to understand that there is a big difference between constitutionally protected religious liberty and the term ‘religious liberty’ being thrown around by religious groups all over the country,” Hamilton continues. “There’s this sleight of hand that the Catholic Conference of Bishops has been using for several years now, and this is the most aggressive use of it I’ve seen so far.”
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