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First Amendment Basics and the Contraceptive Coverage Rule

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Some people took issue with my use of the word "lie" in my last post in reference to statements by the United States Conference of Catholic Bishops regarding the Health and Human Services regulation that requires insurance plans include coverage for contraception. I think this criticism is valid, because the word "lie" implies intent and I have no way of knowing the motivation behind any statement I have reason to believe is inaccurate. And it certainly isn't conducive to dialogue to call people liars (nor to call people promoters of "the culture of death," but two wrongs don't make a right). Going forward, I will try to use more neutral language:

On Friday, the USCCB tweeted this demonstrably false statement: "Federal judge finds HHS mandate violates conscience rights of private employer."

That did not happen. The judge barred HHS from requiring the plaintiff corporation comply with the regulation for three months. The order merely maintains the status quo until a future determination as to whether the regulation violates any right of the plaintiffs.

In order to obtain this order, the plaintiffs did have to show a likelihood that their lawsuit would be successful. However, Judge John L. Kane explicitly declined to address the plaintiffs' First Amendment claim, instead limiting his analysis to plaintiffs' claims that the HHS regulation violates a federal statute.

Despite the rampant allegations in the media that requiring contraceptive coverage is unconstitutional, plaintiffs should not prevail on First Amendment grounds as a matter of well-settled Supreme Court precedent. Let's go to the caselaw.

Justice Antonin Scalia, famously conservative and Catholic, wrote the majority opinion in Employment Division v. Smith. In Smith, the Court held that a neutral, generally applicable law that incidentally burdens one's religious exercise does not violate the First Amendment. The case concerned two Native American worshippers who used peyote in a religious service. Despite the fact that the criminal prohibition of peyote precluded so fundamental an act of religious expression as taking communion, the Court held that the First Amendment did not entitle the plaintiffs to any exception whatsoever because the law applied to everyone.

Justice Scalia explained that the government may grant an accommodation to religious groups but the First Amendment does not require that it do so. In his view, the proper protection from laws that burden religious freedom is the political process. If you need to use a regulated substance in your religious service, you must vote for officials who will legislate such a right. Requiring religious individuals be exempted from laws everyone else must follow would be to make "religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

The problem with Justice Scalia's approach, in my view, is that it provides too little protection to the adherents of minority religions. Leaving the accommodation of religious beliefs to the political process is likely sufficient to protect the right of Catholics to consume wine at mass. It is probably not sufficient to protect the interests of Native American adherents of a little known faith who lack the number of voters and the political clout that Catholics enjoy.

But it doesn't really matter that I don't like the Supreme Court's holding in Smith because it has been the law for more than 20 years. The Court has upheld the ruling repeatedly. It is "black letter law," the kind of not-up-for-debate rule the multi-state bar exam can test in a multiple choice question. Congress attempted to restore pre-Smith protections by enacting the Religious Freedom Restoration Act, so a plaintiff claiming that a generally applicable federal law burdens her religious expression has some recourse under that statute - but not the Constitution. There is no use arguing how great the burden or how insignificant the government's interest. That is the law: I have to accept that and Cardinal Dolan should as well.

The HHS regulation is a law of general application. Courts have held nearly identical state contraceptive coverage laws to be constitutional in decisions the Supreme Court has declined to review. Given this reality, those promoting the idea that the HHS rule is "a radical violation of the First Amendment," without any argument as to why Smith would not apply or might be overturned, appear to be either uninformed or disingenuous.

Presumably, the USCCB's false tweet is meant to bolster this unconstitutionality claim. Perhaps to contraception opponents, the HHS rule truly feels unconstitutional. But that isn't what they are saying. They are making a legal claim. And they are using this unfounded legal claim to make extremely serious allegations. It is one thing to say, "I think this is a terrible policy." It is something else entirely to suggest those whose policies you oppose are trampling the Constitution or persecuting the religious.

Though the court order tweeted about doesn't say what the USCCB says it does, the USCCB should be pleased with what it does say. For example, Judge Kane indicates that the term "a person," as used in the Religious Freedom Restoration Act, might mean secular for-profit corporation. Also, though courts have found that improving the health of women and children and equalizing the coverage of women and men justify state contraceptive coverage laws, Judge Kane suggests the Obama administration may not be able to show a compelling interest in these objectives because it has granted too many exemptions.

The court order raises the possibility of a new reading of the RFRA that I find unpersuasive and troubling, but it leaves those statutory questions open and the First Amendment precedent unquestioned. Let's get our facts straight and argue about this in good faith.