On the Constitutionality of the Contraception Mandate
There are many horrible features about the President’s birth control mandate, with respect to religious institutions. The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.
To that claim, there are several replies. The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual. That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world. Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core. The issues of abortion, contraception, and sterilization get far closer to the core.
It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike. The position of neutrality is taken in Unemployment Division v. Smith, a decision written by Justice Scalia. That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.
Thus if the United States decided to order all people to mix meat with milk for health reasons, it could enforce that rule on all citizens including those who follow Kosher or other dietary regimes that forbid that conduct. There is no effort to weigh the impact on the group against the putative public gain.
The use of this neutrality test is a wholly inaccurate reading of the First Amendment Religion Clauses that pays no need to the structure of either the Free Exercise or Establishment Clauses. It has been widely attacked from all sides of the political spectrum for the grotesque interference with religious liberty that it imposes. The Religious Freedom Restoration Act is but one indication of the bad odor that has attached to Smith from the day that it came down. There is good reason to think that its wings have been clipped since Hosanna-Tabor, and good reason as well to think that an explicit mandate that a religious organization perform what it regards as immoral actions, or else forfeit all federal moneys—collected in part from its members—is distinguishable from a decision that denied unemployment benefits to someone who used peyote in religious settings. Chief Justice Roberts put the point this way:
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use [in Smith], is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. . . . The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
No one should rely on Smith after it has received this explicit dust off. Smith is on the way out, and not a moment too soon.