Sunday’s New York Times featured an utterly incompetent op-ed by Dorothy Samuels—a member of the NYT editorial board—contending that the “legal case against the [HHS contraception mandate] is remarkably weak.” But what is “remarkably weak” is Samuels’s grasp of the relevant principles of religious freedom that she undertakes to present:
1. Samuels contends that the HHS mandate does not trigger the protections of the Religious Freedom Restoration Act because the mandate “does not interfere with a religious practice or ceremony.” The mandate, she asserts, “is no impediment to the exercise of religion,” for it “does not interfere with church governance, prevent anyone from voicing opposition, or force anyone to use contraceptives in violation of religious beliefs.”
Samuels’s contention is a jumble of confusion. She’s trying to advance a very narrow concept of the “exercise of religion” protected by RFRA, but she can’t even sort out what she thinks is the limiting principle. First, she seems to limit the “exercise of religion” to “religious practice or ceremony,” but then she expands the concept to encompass “church governance” and to not being “force[d] … to use contraceptives in violation of religious belief.”
As I have explained, a person engages in an “exercise of religion” under RFRA when, for religious reasons, he performs, or abstains from performing, certain actions. In the text of RFRA itself, Congress cited the landmark Free Exercise cases of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), which set forth the standard of scrutiny that RFRA restores as a matter of federal statutory law. In Sherbert, an individual’s religious beliefs forbade her from working on Saturdays. In Yoder, the parents of teenaged children had religious beliefs that prohibited them from sending their children to high school. So neither case involved “religious practice or ceremony” or “church governance.” Nor has any RFRA case imposed such a narrow reading of “exercise of religion.”
Samuels seems not to grasp that her apparent recognition that RFRA applies when a person is “force[d] … to use contraceptives in violation of religious belief” reflects the broader principle that RFRA applies any time a person is forced to take any action in violation of that person’s religious belief.* (To be clear: In saying that RFRA “applies,” I am maintaining only that RFRA’s standard needs to be satisfied—the point Samuels denies—not that the person’s RFRA challenge will necessarily succeed.) So Samuels is flatly wrong to maintain that a person is not engaged in an “exercise of religion” for purposes of RFRA when that person, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients.
2. Samuels’s argument that the HHS mandate can pass RFRA’s strict scrutiny is laughable. Samuels asserts that the HHS mandate “clearly advances the government’s compelling interest in promoting women’s health and autonomy, and broad participation is the least restrictive way to carry out a complicated national health reform.”
Let’s start with the latter first. The question under the “least restrictive means” prong of RFRA is whether the HHS mandate increases access to contraceptives via the means that is least restrictive of the religious liberty of the objecting employer. The obvious answer to that question, as I have explained, is no: There are plenty of means by which the government could provide contraceptives directly, and the Obama administration’s decision instead to dragoon the objecting employer is among the means most restrictive of the employer’s religious liberty.
Rather than confront this argument, Samuels makes the unintelligible assertion that “broad participation is the least restrictive way to carry out a complicated national health reform.” Her statement gives no hint that she even understands that the focus of the “least restrictive means” test is on the religious liberty of the objecting person.
Because the HHS mandate can’t possibly pass the “least restrictive means” test, it flunks RFRA. But as I explain here, the HHS mandate also can’t pass the “in furtherance of a compelling governmental interest” prong of RFRA. Samuels’s conclusory assertion provides no response to the points I have made. (See here for a one-stop collection of my posts on the HHS mandate and RFRA.)
3. Samuels also makes a superficial argument that the HHS mandate doesn’t violate the Free Exercise Clause, as interpreted in Employment Division v. Smith. (In fairness to Samuels, I will note that many of the assertions that the HHS mandate does violate the Free Exercise Clause are equally superficial and fail to take account of Smith.)
What Samuels fails to recognize is that the exclusion of a broad swath of employers from the mandate for secular reasons—e.g., the employers who have so-called “grandfathered plans” and small employers (see points developed here, in the context of RFRA’s “compelling interest” standard)—means that the mandate isn’t neutral and generally applicable. (As the Sixth Circuit recently explained, a law is not neutral and generally applicable if it “permit[s] secular exemptions but not religious ones.” See also the Third Circuit opinion by then-Judge Alito that I discuss here.) The mandate is therefore subject to the same test under the Free Exercise Clause that it faces under RFRA, and it flunks that test for the same reasons.
* On review (5-6 p.m.), I’ve tweaked this sentence to make it more clear.