02/21/2012 11:18 am ET Updated Apr 22, 2012

Constitution Check: Does Mandated Birth Control Insurance Violate Religious Freedom?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: birth control and religious belief.

The statement at issue:

"In imposing this requirement, the federal government has drifted dangerously beyond its constitutional boundaries, encroaching on religious freedom in a manner that affects millions of Americans and harms some of our nation's most vital institutions."

-- Speaker John Boehner, Ohio Republican, on the floor of the House of Representatives, February 8, commenting on the Obama Administration's plan to require hospitals and clinics to include insurance coverage for birth control, without an exception for such facilities that are operated by the Roman Catholic Church, which treats contraception as a violation of its beliefs.

We checked the Constitution, and...

For more than four decades, public policymakers have been trying to fashion exemptions from government programs when those would violate the religious views of those taking part in the program. And, while constitutional issues have always been in the background of efforts to write "conscience" exemptions, the constitutional boundaries that Speaker Boehner discussed are not yet as clearly defined as he suggested; the lines are blurred, and might vary depending on the details.

President Obama and his aides are continuing to struggle over ways to avoid violations of religious doctrine (mainly, Roman Catholic dogma) as they move to implement a provision in the new federal health care law requiring health insurance coverage of birth control for employees. They also are developing arguments to use in defending that provision in three lawsuits already challenging it, in cases filed by the Becket Fund for Religious Liberty.

So far, the government has given churches, as such, an exemption, but the regulations do not give an exemption of equal scope to hospitals, colleges, or other social service institutions directly affiliated with a religious organization but not primarily involved in spreading the faith. After a strong political protest came rushing at them, Administration aides began tinkering with a broader exemption, and are still working on its details.

As this controversy unfolds, in the courts if not in the political realm, judges will not find it easy to sort out where the Constitution stands. A split decision by the California Supreme Court in 2004, upholding a state law that does very much what the new federal law requires in mandating birth control coverage, illustrates how judges can and do differ on how to interpret prior Supreme Court rulings that do not deal directly with that issue (Catholic Charities of Sacramento v. Superior Court).

It is settled under the Constitution, of course, that the government may not operate a program that favors one religious faith over another, nor can it carry on a program that is based on hostility to one disfavored faith. The First Amendment guarantees religious neutrality in government action, and it assures religious organizations wide freedom to run their own internal affairs without government intrusion.

But those are broad principles, and the Supreme Court has not spelled out, in a specific case involving a "conscience clause," just what the Constitution requires, or allows, when a public policy or scheme falls somewhere between the extremes and a religious organization claims its religious freedom has been compromised or violated.

The Justices, though, over the years have decided numerous cases that will now be parsed by lower court judges as they prepare to rule on the constitutionality of the new federal mandate on birth control for employees of religiously affiliated medical and educational facilities.

In chronological order, here are perhaps the most significant rulings that might favor the challenges to that mandate: Watson v. Jones, 1871, government may not second-guess internal tenets of faith or religious discipline; Corporation of Presiding Bishops v. Amos, 1978, allowing government to exempt religious employers from claims of religious bias in workplace policies; Larson v. Valente, 1982, government is forbidden to discriminate against one religious denomination, based on how they raise church revenues; Church of Lukumi Babalu Aye v. Hialeah, government may not ban specific forms of religious practice if that is done out of hostility to the tenets of that faith; Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 2012, government must provide an exception to laws against discrimination for workplace policies involving church ministers or faith leaders.

Also chronologically, here are the key rulings that might favor the birth control mandate: United States v. Lee, 1982, an employer must pay Social Security and unemployment taxes despite a religious objection; Alamo Foundation v. Secretary of Labor, 1985, religious organizations must pay their workers minimum wages despite a religious protest; Employment Division v. Smith, 1990, laws that apply generally and do not single out religious groups may be upheld even if they intrude on religious practices.

In the 2004 Catholic Charities decision by California's Supreme Court upholding a birth control mandate, it took the majority and dissent a total of 80 pages to sort through those, and other, Supreme Court precedents. It involved considerable judicial labor.