The Religious Liberty Challenge to Obamacare

This week, the Supreme Court resurrected a case challenging the constitutionality of Obamacare, which had been denied by the federal appeals court in Virginia on procedural grounds. This is a win for opponents of Obamacare, but a modest one.

The Virginia case, brought by Liberty University, is not a replay of last summer’s broad challenge to Obamacare, where the Supreme Court upheld the law as a valid taxing measure. Thanks to Chief Justice John Roberts, the argument that Obamacare exceeds the powers granted to the federal government by the Constitution is closed.

Instead, this is a much narrower challenge based on religious liberty: Liberty University argues that Obamacare’s requirement that employer health policies pay for federally specified health procedures, such as abortions, violates its religious beliefs. The bad news is that this is a narrow claim that would not overturn Obamacare as a whole, only how it is applied to religious institutions. The good news is that Liberty University’s chances of success are very high. Of late, the Court has been quite protective of religious freedom — it recently unainamously rejected, for example, the Obama administration’s arguments that federal employment discrimination laws should apply to the firing of religious personnel by a church.

Liberty University’s case may not end up being the vehicle, but the rights of religious minorities under Obamacare will reach the Supreme Court sooner rather than later. There are other cases moving up to the federal appeals courts also challenging Obamacare’s insurance mandates for violating religious freedom. Although there are good arguments on the other side (federal laws of general applicability are not unconstitutional as applied to religious groups), the First Amendment and the Religious Freedom Restoration Act (which only permits federal infringement of religious freedom for a compelling government interest) should require the Court to side with religious minorities.