Bench Memos

Linda Greenhouse’s Misunderstanding of RFRA and the Free Exercise Clause

In the course of a lengthy blog post for the New York Times, Linda Greenhouse undertakes to address how the HHS contraception mandate would fare under the Religious Freedom Restoration Act and the Free Exercise Clause. Unfortunately, her analysis is shoddy.

As I have spelled out, under RFRA a government action that substantially burdens an exercise of religion can be justified only if application of the burden to the person (1) furthers a “compelling governmental interest” and (2) is the “least restrictive means” of furthering that interest. The HHS mandate clearly flunks both prongs of the test.

Oddly, Greenhouse doesn’t even acknowledge the “least restrictive means” component. If she had, she would immediately have recognized that the HHS mandate can’t pass that test, for, as I have explained, there are plenty of other means of increasing access to contraceptives. Conscripting employers who have religious objections is obviously among the means most restrictive of their religious freedom.

Greenhouse also doesn’t confront, much less seriously engage, the arguments showing that the HHS mandate’s application to objecting religious employers doesn’t further a “compelling governmental interest.” She lazily asserts that this question “would pit the well-rehearsed public health arguments … against religious doctrine.” But that’s not at all what would be at issue. As I’ve pointed out, the relevant questions, rather, include (a) whether the government has a “compelling” interest in marginally increasing access to contraceptives; and (b) how the interest in conscripting objecting employers can be compelling when, for secular reasons, both small employers and the “grandfathered” plans that cover tens of millions of enrollees are exempt from the HHS mandate.

This last point also establishes that the HHS mandate is not a neutral law of general applicability within the meaning of Employment Division v. Smith, so the same RFRA prongs apply under the Free Exercise Clause.

Thus, Greenhouse is wrong when she asserts that Catholics are now claiming “a right to special treatment: to conscience that trumps law.” The relevant law includes RFRA and the Free Exercise Clause, and the HHS mandate violates both.

I’ll further note that in the nearly two weeks since I set forth my extensive arguments that the HHS mandate is a clearcut violation of RFRA, no one, so far as I’m aware, has taken issue with one syllable of my analysis.   

Addendum: I see that Ross Douthat has some excellent comments that apply to Greenhouse’s factual assertion that Catholic bishops aren’t speaking for the consciences of Catholics. I’d add that that individual employers who are Catholic and who operate secular businesses are also fully protected from the HHS mandate under RFRA and the Religious Freedom Restoration Act. If any political resolution of this controversy is worked out, it needs to protect them as well.

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