In today’s Wall Street Journal, David Rivkin and I have co-authored an op-ed that offers a condensed argument that the HHS contraception mandate violates the Religious Freedom Restoration Act and the Free Exercise Clause. (My posts developing the RFRA argument more extensively are collected here.)
Addendum: Space limitations may have forced too elliptical a discussion of the Free Exercise point, so let me briefly elaborate it here. Deference under Employment Division v. Smith applies only to laws and policies that are neutral and generally applicable. 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—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.