Just what is "religious freedom," legally speaking? Or: Should a Muslim cabdriver be allowed to refuse a passenger who carries alcohol?

Bryan Cones| comments | Print this pagePrint | Email this pageShare
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The longer the HHS mandate debate goes on--and the more heated it becomes--the further and further from a rational conversation we get. One casualty is the meaning of the law itself: What, constitutionally, is "religious freedom"? And when, if ever, can the government restrict it for some other purpose?

We don't have a "religious freedom" clause in the constitution; we have a "free exercise" clause. That clause, like the entire Constitution, has been subject to interpretation by the courts, and the controlling case, Employment Division of Oregon v. Smth, decided in 1990 on a 5-4 decision of the Rehnquist court with an opinion written Antonin Scalia, says that the court will only consider the facial neutrality and general applicability of a law in considering whether a law violates the free exercise clause, rather than the disproportionate impact of a law. In the case, two Native American men wanted to ingest peyote (a controlled substance) as part of their religious practice, but the law forbid it. Before Smith, they could have sought a judicial exemption; after Smith, they would have to seek a change in the law. The generally applicable and facially neutral law ("No one may ingest peyote") stood, despite the impact on the free exercise of these men. (A good article on this here.)

Because of Smith, the HHS mandate is arguably and most likely constitutional: The government only has to show a compelling interest (equal access to approved forms of health care for women) and least restrictive means (they would argue this mandate is the least restrictive since most women get their health care through employer-based insurance). In fact the rule would probably be constitutional even without the current exemption for churches and houses of worship. The rule applies to everyone, and it is "facially neutral" (doesn't explicitly discriminate), though it has a disproportionate impact on Catholic institutions, which Smith rules out for consideration.

Here's the rub: Everyone knows this is the case, both the bishops who are opposing the mandate and the administration who supports it. The bishops have two options now: Either sue the government under a law passed after Smith (UPDATE: I was talking about the 1993 Religious Freedom Restoration Act, see comments below), and so argue that the government does not have a compelling interest in ensuring equal access to health care for women (who wants to make that argument?), or seek legislative redress--lobby Congress to pass a law exempting the church from the mandate. They may be pursuing the latter option--encouraging Catholics to call their representatives--but it seems unlikely that even the House of muster enough votes to, in effect, deprive many women coverage of contraceptives. And it's unlikely that the current Supreme Court would reverse Smith anyway, since many justices who supported it are still on the court.

In a way, Catholics are now in a similar position to those peyote ingesters: Catholic refusal of birth control is a minority religious belief in a majority-rule society; we want protection to practice (or not offer) a service that most people think should be available to women. But the law is not on our side, any more than it was on the side of Muslim cab drivers in Minneapolis who did not want to accept passengers carrying alcohol for religious reasons. If the bishops want an exemption from the HHS mandate, are they also willing to support other religious groups with minority religious beliefs--like ingesting peyote or refusing to transport people carrying alcohol? These aren't precise analogies, but they are worth consideration.