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The HHS Mandate and the First Amendment

by Gerard V. Bradley
A look at the relevant jurisprudence

At this point, it remains unclear how much calm the Obama administration’s “compromise” on its mandate requiring all insurance plans to cover contraception will restore. The “compromise” conceded nothing to religious liberty; it was not meant to. It was meant to cauterize a political bleed. The New York Times headline said that it “aimed at pleasing Catholic allies on the left.” It did so by applying a verbal salve. On cue, Sister Carol Keehan, president of the Catholic Health Association, said that she was “very pleased.” Liberal Catholic journalists and politicians were happy too. The bishops’ initial response was conciliatory as well, but on a careful second look, they saw through the charade.

Yet no matter how this current fight ends, the same challenges to religious liberty, for the same reasons and with the same stakes, are going to keep popping up, again and again. The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come.

Partisans of religious liberty should not expect the courts to be reliable allies in this fight. The relevant judicial interpretations of the Constitution are discouraging. The clause that sounds most in sympathy is the one in the First Amendment that bans Congress from “prohibiting the free exercise” of religion. But its scope is basically limited to laws meant to harm religion; it does not relieve churches and believers of burdens imposed by laws of “general applicability.”

One might argue that the HHS mandate nonetheless violates the Free Exercise Clause. After all, contraception is already part of the cultural furniture, and it could be delivered to every address by means that do not involve religious employers. The administration’s decision to conscript these employers anyway may reflect a desire to remove the last moral stigma from contraception, precisely by involving the Catholic Church in it. If so, then the mandate evinces unconstitutional hostility to religion. While this argument is plausible enough to warrant development, it would take an especially independent-minded judge to hold that the Obama administration has aimed to handicap the Catholic Church.

In particular, the Supreme Court is an unsure ally against the HHS mandate. In the recent case of Hosanna-Tabor, the Court affirmed a Lutheran grade school’s prerogative to hire and fire teachers whose jobs include religious instruction. The justices held that the Free Exercise Clause exempted the school from compliance with employment-discrimination laws. So far, so good. But Hosanna-Tabor was a narrow holding, supported by reasoning that lacks depth — which may have been the price Chief Justice Roberts paid for a unanimous Court.

The decision distinguished Hosanna-Tabor from the nearest Free Exercise precedent, Employment Division of Oregon v. Smith (1990). In that case, the Court ruled that a state was not required to permit an illegal act (ingesting peyote) simply because it was done for religious reasons (as part of an American Indian worship ceremony). Hosanna-Tabor said that Smith had involved “outward physical acts,” while “the present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.” But firing someone is an outward act, and making a church’s sacrament a felony must, somehow, negatively “affect” its faith and mission.

Employment Division of Oregon v. Smith was, in my judgment, rightly decided. But the Court’s core commitment in Hosanna-Tabor could have been leveraged to greater profit without overruling Smith. That commitment was, plainly, that the state must not interfere in matters of religious doctrine; religious leaders are sovereign masters of their messages. This is indeed a bedrock constitutional command, resting as much (or more) in the Establishment Clause as it does in Free Exercise. It is so important, Hosanna-Tabor further held, that employment-discrimination laws must take a detour around religious doctrine.

Here is the bridge to HHS. Lawyers for Catholic hospitals and schools could argue that these ministries exist to exhibit the Catholic faith, that their central purpose is to witness to the truth of Catholicism, that their mission is to present the faith publicly, by and through healing patients and teaching calculus. Lawyers could then say that these institutions cannot convey the truth about Catholicism if the government forces them to peddle contraceptives. (This is in fact the heart of the bishops’ objections to the mandate.) After all, if the mandate stands, the law will state that a Catholic grade school has a core constitutional right to fire any teacher who uses the contraceptives that HHS requires the school to buy for her.

Many lawyers and academics would read Free Exercise more expansively, to require that any law imposing an appreciable burden upon religious exercise must (a) achieve a compelling state interest and (b) be the least restrictive means of doing so. Some state constitutions, as well as many state and federal statutes, contain this strict requirement, and sometimes it has been a difference-maker for religious liberty, but not as often as you might expect. The very limited exemption in the HHS rule (for houses of worship, but not hospitals or schools) is taken word for word from earlier state contraception mandates in California and New York. Both of those laws were judicially upheld, even though the courts upholding them applied the stricter brand of scrutiny.

Obama’s HHS mandate is supposed to guarantee women access to “reproductive health” services. This claim is nested within a broader social vision from which all women — whether they want the Pill or not — supposedly benefit. The Supreme Court’s centrist bloc explained this in Planned Parenthood v. Casey, the 1992 affirmation of i: “For two decades . . . people have . . . made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. . . . The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

President Obama expressed the same thought a few weeks ago when he welcomed another year of Roe v. Wade. We must, the president said, “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.” The unstated but obvious corollary is that our daughters should also be able to have all the sex they want without losing a step to their fraternal competitors in the race for success.

This vision is powerful enough to compress religious liberty by itself. But the view so far described is not all of it. The story about our daughters comes out of what the Supreme Court in Casey christened as the “heart” of all constitutional liberty. It is the individual’s right “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The super-liberty of the “mystery” passage is the overriding good, the intrinsically valuable asset to personal fulfillment. It is what allows you to be you, and me to be me. What could be more important or more fundamental than that?

The law has become a therapist. For several reasons — including the unprecedented penetration of legal norms into the workplace, the school, the culture, and the family, as well as the emergence of constitutional law as our society’s paramount value repository and moral educator — the law now seeks to affirm or endorse or recognize everyone’s lifestyle choices, whatever they happen to be. This writ runs beyond the law’s own precincts. Ordinary folks are called upon not only to respect everyone, notwithstanding his or her sexual and reproductive choices. They are expected to respect the choices too, or at least not to publicly demean them.

This equal-respect dynamic is most visible in the law’s treatment of sexual orientation. The linchpin of the Supreme Court’s 2003 ruling against state laws prohibiting sodomy was the “mystery” passage from Planned Parenthood v. Casey. The Court in Lawrence v. Texas reasoned that even never-enforced laws against sodomy conveyed the state’s disapproval of homosexual persons. This “demeaning” effect had to be uprooted, lest it promote — the Court further said — private discrimination against homosexuals. According to Lawrence, the Constitution requires judges and legislators to do what they can — within limits, to be sure — to protect gays and lesbians from that sort of moral criticism.

The most pristine expression of this egalitarian complex of ideas can be found in Judge Stephen Reinhardt’s ghastly recent opinion that struck down a ban on same-sex “marriage” that had been approved by California voters. Reinhardt reduced “marriage” — his scare quotes — to a “symbol [of] state legitimization and social recognition of [same-sex couples’] committed relationships.” As Reinhardt saw things, to say that same-sex couples cannot marry is to say that they are second-rate people. And that is the end of it.

The emerging picture, and the force behind today’s recurring challenges to religious liberty, is this: So long as one remains in the strictly “private” sphere of home, social club, and sanctuary, one is free to hold misguided opinions about contraception, abortion, and marriage. But once one sets foot in “public” — defined expansively to include the workplace, shops, any place that receives state funds, and religious ministries that serve persons outside the faith — the rule is no discrimination, full stop. It is all aboard for the new “equal sexual liberty” orthodoxy.

In this worldview, there is nothing special or distinctive about religion. Religious liberty is one way of exercising the super-liberty of Casey. Having sex and getting an abortion are other ways. They are all species of the same genus.

The Obama administration’s position in the Hosanna-Tabor case expressed exactly this view. The administration opposed any such thing as a “ministerial” exemption and gainsaid any special treatment of employment relations in religious settings. Administration lawyers said that churches should enjoy the same right to freedom of association as do other private groups, such as the Boy Scouts, the Jaycees, or the Teamsters.

The Hosanna-Tabor Court found this position “untenable.” It is indeed “untenable” for the reason the Court offered: Why is there an explicit religious-freedom guarantee in the Constitution, if freedom of association does the whole job for churches? It is not “untenable,” though, insofar as the administration took its bearings from the Court’s mandate in favor of equal sexual liberty.

In years past, religious-liberty plaintiffs were outliers: Quakers who would not fight, Amish who would not be scholars, Jehovah’s Witnesses who would not salute the flag, biblical literalists who would not countenance graven images (pictures) on their driver’s licenses. Accommodating these believers imposed no appreciable cost, affected no one else’s rights, and had no culture-shaping effects. It was no stretch, and it took no great courage or vision, for courts to back them.

In years past, judges understood themselves as champions of the underdog in religious-liberty cases. They could wrap their minds around the discrete interests at stake, concerns such as a small number of children who refuse to be vaccinated, or the financial burdens of building a road so it went around an ancient American Indian burial ground. Now courts face a choice between the survival of hundreds of Catholic institutions and our daughters’ opportunity to live their dreams.

What is a judge to do? “Equal sexual liberty” is a powerful and seductive vision. It has many adherents. It has already scored some big victories over religious freedom. But its triumph is not inevitable, even though its proponents say that they are on the “right side of history.”

Any resistance strategy must recognize that most — not all, by any means — of the trump cards are held by legislators. Lawmakers are more likely than judges to see and act upon the distinctive nature and value of religion and religious institutions. The template for protective legislation could be the law that exists today about conscientious objection to capital punishment. This federal law states that no employee of any governmental unit (national, state, or local) may be required to “attend” or “participate in . . . any prosecution or execution” if doing so “is contrary to the moral or religious convictions of the employee.” Little or no objection has ever been raised to this entirely unexceptionable statute.

Of course, this exemption implies no insult of anyone’s preferred path to orgasm. That is probably why it is uncontroversial.

– Mr. Bradley is a professor of law at the University of Notre Dame.

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