-Submitted by David Drumm (Nal), Guest Blogger

Since the United States Conference of Catholic Bishops (USCCB) has rejected Obama’s contraception compromise, and since House Speaker John Boehner (R-Ohio) has called the mandate unconstitutional, it’s a good time to look at what the Supreme Court has decided. A critical case is Employment Division v. Smith (1990) in which J. Scalia wrote the opinion for the 6-3 majority. Although there has been a torrent of invective regarding the Smith decision, I find it well-argued and compelling.

The question before the Court in Smith was whether the Free Exercise Clause of the First Amendment could exclude religious use of peyote from criminal prohibition. Although contraception is not illegal, as peyote is, the principles put forth in the Court’s opinion present real problems for those contending the mandate is an unconstitutional encroachment on the Free Exercise Clause.

In Smith the Court notes that when the law is not specifically directed at a particular religion, “the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”

The Court notes the test from Sherbert v. Verner (1963) where “governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.” In Smith the Court rejects the “compelling interest” test:

To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense.

The contraception debate has raised the issue of “Religious Liberty.” In Smith the Court addresses that issue when a similar argument is raised:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind …

In Reynolds the Court expressed a similar concept:

To permit [polygamy among members of the Mormon Church] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

“Religious Liberty” does not extend to the case where an employer or insurance company CEO gets to decide what medical procedures are “immoral.” With our diversity of religion, every medical practice, procedure, or regulation is sure to be considered “immoral” and conflict with someone’s religious beliefs. If we water down every statute with religious exemptions, we will be courting anarchy. We are a nation of secular laws, and religious exemptions to those laws need to be few and far between.

The USCCB could try the 1993 Religious Freedom Restoration Act (RFRA), passed in response to the Smith decision, which says that any law that burdens religious freedom must satisfy strict scrutiny. However, in the case of City of Boerne v. Flores (1997), the Court held that the RFRA is an unconstitutional use of Congress’s enforcement powers. Although the opinion applies only to States, the principle may extend its application should the USCCB decide to file suit under the RFRA.

H/T: TPM, Marci A. Hamilton (pdf), Paul E. McGreal.