Sunday, February 19, 2012
Ellis West (University of Richmond) has published an op-ed in the Richmond Times-Dispatch arguing that "if if the question is whether the [contraception-coverage] regulation violates the religious freedom guaranteed in the First Amendment, the answer is clear. It does not." Much of the piece presents arguments that the framers did not intend the Free Exercise Clause to require exemptions from facially neutral, generally applicable laws. I believe the historical issue is more debatable than Ellis does, but let me focus on a couple of smaller but important points about the religious-freedom legal challenges to the mandate.
One point is about the constitutional free-exercise claim. According to Ellis, Catholic objectors are arguing that "groups have a right to be exempt from obeying valid laws everyone else has to obey, provided they have religious reasons." Actually, though, it is definitely not the case that "everyone else has to obey" the mandate. As the complaints in the lawsuits state, millions of small employers (employing under 50 people) are exempt; significant percentages of other employers are grandfathered; and individualized waivers, running probably in the thousands, have been granted by HHS to others. See paragraphs 36-53 of that complaint (filed by a non-Catholic objector, Colorado Christian University). When the law accommodates the interests of so many organizations--the interest in alleviating burdens on small business, the various interests reflected in the granted waivers--there is a strong First Amendment argument that the law must likewise accommodate the constitutionally recognized interest in religious conscience. In the terms of Employment Division v. Smith and cases following it, the mandate is not "generally applicable."
The other points are about the Religious Freedom Restoration Act, on which the challengers rely. Ellis says that Congress passed RFRA "because of pressure from religious organizations," and that Americans need to decide "which kind of religious freedom they want": the kind that gives exemptions from facially neutral laws or the kind that doesn't. Actually, RFRA also had support from a host of secular civil-liberties organizations, including the ACLU and People for the American Way. And as this article reminds us, "Support was so widespread that the RFRA passed the House in a voice vote. In the Senate, the final version passed 97–3." Unless Congress was monumentally out of touch, these margins suggest that Americans from across the political spectrum really do want the kind of religious freedom in which, after the political tug-of-war has produced a substantial burden on religious exercise, courts take a second look whether that burden is justified by strong reasons.
I think the right phrase is "Americans do want" such freedom rather than "did want," but it's a little less clear today than in 1993, when people from across the political spectrum thought religious conscience deserved that chance for accommodation depending on circumstances. Today, you hear more liberals saying that accommodations are simply improper, affronts to the rule of law. That's a change: an abandonment, unfortunately, of a longstanding liberal commitment to protecting religious conscience from majoritarian imposition.