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Contraceptive mandate does not prohibit free exercise of religion

By Brian McCarty
On March 26, 2014

On Tuesday the Supreme Court heard oral arguments in the consolidated cases Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. These cases were brought forward by for-profit corporations claiming the Affordable Care Act's contraceptive coverage provision violates their religious freedom. While the provision certainly compels individuals to act contrary to their religious beliefs, that fact does not necessarily imply the provision prohibits their religious freedom. This proposition may seem paradoxical at first, but our history and precedents demonstrate there is no conflict between these two ideas.
The companies in question object to providing insurance coverage for certain forms of birth control that they believe are abortive. They claim a compulsion to provide coverage for these abortive medicines prohibits the free exercise of religion in violation of the First Amendment to the U.S. Constitution. Historical evidence and subsequent judicial interpretation do not support this claim. In reference to the First Amendment, Thomas Jefferson wrote, "...the legislative powers of the government reach actions only, and not opinions" and that "...he [man] has no natural right in opposition to his social duties." These passages illustrate that the generation that passed and ratified the First Amendment intended it to prevent government prohibition of certain religious thought, not particular actions that may derive from that thought.
In Reynolds v. U.S. (1878), the Supreme Court considered whether the prohibition of polygamy in U.S. territories prohibited the religious freedom of Mormons. In the Court's opinion, Chief Justice Morrison Waite wrote that, "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions that were in violation of social duties or subversive of good order." The Court upheld the prohibition, claiming, "To permit this 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. Government could exist only in name under such circumstances." The Court denied the right of individuals claiming a violation of free exercise to be exempt from a generally applicable law.
This principle was again demonstrated by the Court's decision in Employment Division v. Smith (1990). The case concerned a denial of unemployment benefits to members of the Native American Church because they were fired for ingesting peyote, a criminal offense in the State of Oregon. The Church members claimed the denial was a prohibition of the free exercise of religion. In the opinion of the Court, Justice Scalia uses the example of a person who objects to paying taxes under religious freedom grounds because he believes "support of organized government to be sinful". He writes, "It is a permissible reading of the say that if prohibiting the exercise of not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended". He goes further to state, "a private right to ignore generally applicable laws - is a constitutional anomaly." Though many other cases have found religious exemptions to general laws, the Free Exercise Clause should be interpreted to prevent prohibitions of religious thought, not action. This is most consistent with the original understanding of the clause. Should we depart from this standard of interpretation, it is foreseeable that many of our laws could be virtually nullified by religious objectors, an outcome utterly inconsistent with the intentions of those who passed and ratified the First Amendment.
These arguments should not be interpreted to say that the contraceptive mandate is constitutional. A mandate requiring employers to provide certain benefits to their employees is a regulation of business relationships, not commerce among the several states. It is not dealing with the unique federal concerns presented by commerce among different jurisdictions, in other words, commerce that cannot be governed by the laws of any one state. However, the long history of the Supreme Court expanding the meaning of the commerce clause far beyond its original and fairest meaning makes any constitutional argument of this kind unlikely to succeed. The Court has historically been more receptive to arguments that a government action violates a right guaranteed in a Constitutional amendment than to claims that the action is beyond the government's enumerated powers. However, this truth should not motivate opponents of unconstitutional legislation to pervert the First Amendment to achieve their ends. A cure of that nature would be worse than the disease.

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