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Obama vs. RFRA



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In our most recent issue, I write about the battle over the administration’s mandate that almost all employers cover contraception for their employees. I start by discussing the history of the law that’s at issue.

People forget it now, but the Religious Freedom Restoration Act — the law that companies and nonprofit organizations are using to fight the Obama administration’s requirement that almost all employers cover contraception, sterilization, and drugs that may cause abortion in their insurance plans — was controversial among conservatives in its first years. The old debate over it should remind us of two truths that, while compatible, are in tension with each other: The principle for which conservatives are fighting in today’s cases is important, and it is not absolute.

The story starts in the 1980s, when two drug counselors in Oregon were fired from their jobs for the sacramental use of peyote. The state denied their applications for unemployment benefits on the ground that they had been fired for misconduct, and they sued on the theory that what the state called misconduct was actually the constitutionally protected exercise of religion. Some Warren Court decisions gave the men hope of winning.

They lost. The Supreme Court, in a 1990 opinion written by Justice Antonin Scalia, ruled that religious belief cannot create a constitutional entitlement to an exemption from a generally applicable law that was not designed to limit religious freedom.

The article is now online for free.



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