03/15/2012 11:23 am ET Updated May 15, 2012

Arizona, You Can't Change the Constitution by Not Understanding It

The Arizona legislature is the latest collection of medieval throwbacks to attempt to contravene the contraceptive coverage mandate coming from the Affordable Care Act. Their AZ 2625 includes new language that attempts to exempt employers from providing contraceptive prescriptions on moral grounds. Their AZ2625 language appears intended to allow any employer to abstain from providing contraceptive coverage due to moral objection with the exception of medical necessity. Medical necessity, that is, other than the arguable medical necessity of avoiding unplanned pregnancy. It's an obvious circumventing of the popular argument coming from the left that contraceptive drugs are of crucial medical importance to some small numbers of women. The Arizona language is low information voter influence shrewd, but without legal merit.

The Obama administration obviously just wants to let this religious freedom dance play itself out and watch the Republicans dig their own political grave. But I'm just tired of hearing about it. There is no controversy necessary because there's no constitutional weight in the assertion that the contraceptive provision infringes upon religious freedom.

First off, there are two clauses on religion in the First Amendment. Together they comprise what is know as religious freedom. The first one, known as the Establishment Clause, is that "Congress shall make no law respecting an establishment of religion...." It's terse, but it's been interpreted for 225 years to mean that not only can't the nation create a national religion, but it also can't promote the interests of one over any other. This evolves, logically, into the concept of separation of church and sate. In the most strict sense, to allow a religion to run the nation would would be to favor that religion above all others. To then allow a religion to opt out of law passed by a congress prohibited from favoring one religion over another would be a constitutional violation.

A more senior constitutional argument must also be considered. The Commerce Clause in Article 1, Section 8, Clause 3, enumerates regulation of commerce as a power of the U.S. government. The Affordable Care Act is an act passed under the power of the Commerce Clause. It therefor applies to all enterprises engaged in commerce for profit or as non-profit organizations established under the clause, regardless of religious affiliation, corporations, S corporations, LLCs and even sole proprietorships being recognized as commerce and licensed to operate under the Commerce Clause. If you want to do business, you must follow the law passed under the Commerce Clause.

Churches are exempt from the regulatory powers under the Commerce Clause exactly because of the First Amendment Establishment Clause. To regulate one church and not all churches in exactly the same manner would be unconstitutional. We leave them alone and expect them to leave us alone.

Church-affiliated charities and universities are not exempt from regulation under the Commerce Clause. Lines have been drawn and have existed for generations. Any attempt to redraw those lines by broadening immunity to commerce powers will ultimately just retrace the legal channels of the past. It's pointless and stupid. The federal government is allowed to mandate contraceptive coverage by employers subject to the commerce clause. Any exceptions for Catholics or Baptists or any random religious zealot would be a violation of the Establishment Clause which prohibits favoring one religion over another. Logically, you'd have to extend similar immunities to the Christian Scientists who don't believe in any health care at all.

A second problem with AZ 2625 is engaged with the Establishment Clause when an employer asserts his morality in denying coverage of contraceptives to employees. If an employer were to do so, it would be imposition of his beliefs on employees who may not have the same beliefs. The imposition is affected by the fact that contraceptive would then impose a practical fine on employees for not adhering to the same beliefs. It's not unconstitutional for an employer to do so as an individual. It is now, however, against the law. It is unconstitutional for the federal or a state government to make a law asserting the employer's right to do so as it, again, favors one religion over another or also even the lack of religion.

The second clause on religion in the First Amendment, the Free Exercise Clause, is "...or prohibiting the free exercise thereof." This is what the Republican political machine has latched unto to claim the Affordable Care Act in unconstitutional. They claim that forcing religious organizations and even individuals to suborn contraception through providing insurance that covers contraceptive prescriptions is an infringement of their rights to practice their religion. The law has been fairly clear on this. If law does not materially affect the practice of a religion it is constitutional. Even if a law does materially affect the practice of religion it can stand if there is a compelling public interest in its provisions. At best, the whole mandate issue would come down to whether or not it's in the public interest to have contraceptives available to the public no matter for whom you work.

There is nothing in the mandate that forces the religious to take contraceptives or to condone contraception. What is in the law is the requirement that the anti-contraception communities accept the practices of other communities and, in most cases, even their own flocks. It's sort of like the Amish having to accept that not everyone else travels in a horse-drawn buggy.

So the argument we should be having is not whether or not forcing a religious-affiliated commerce organization to provide contraceptives to individuals is unconstitutional. The argument should be whether or not conservatives belong in government, they seeming not to be able to understand the plain English in which the Constitution was written.