The Department of Health and Human Services (HHS) has issued a rule requiring most health insurance plans to cover contraceptives for women free of charge. Even though the use of artificial birth control violates one of the tenets of the Catholic religion, there is no exemption for insurance provided to employees of Catholic hospitals, colleges, and charities. [1] Is this constitutional? The First Amendment of the Constitution says this:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [2]
That should be clear enough. The plain language of the Amendment tells us that Congress can’t prohibit the free exercise of religion. HHS gets its rule-making power from Congress, and can’t have more authority than Congress has. To fully practice the Catholic religion one must abstain from participating in artificial birth control. But the HHS rule requires Catholic hospitals, colleges, and charities to participate in artificial birth control by funding it through their employee insurance plans. So the HHS rule must violate the First Amendment. Right?
Unfortunately, it’s not that simple. The U.S. Supreme Court is hard to follow on this issue because it can’t make up its mind. For awhile it was applying what is called the Sherbert test, not for any dessert-like qualities, but after a Supreme Court case captioned Sherbert v. Verner. [3] Under the Sherbert test, a government could substantially infringe on a person’s free exercise of his religion if it had a really, really good reason, in legal parlance referred to as a “compelling state interest,” and it couldn’t do what it wanted to do any other way. Of course, the First Amendment doesn’t say that the free exercise of religion can be prohibited if the government has a real good reason for it, but we can’t let all these rights inconvenience the government too much.
That was the test for awhile. Then, in 1990, came Employment Division, Department of Human Resources of Oregon v. Smith. [4] This was a case where two adherents of the Native American Church were fired by a private drug rehabilitation organization because they took peyote as part of their religious practice. When they tried to collect unemployment benefits they were turned down because they had been terminated for work-related misconduct.
Looking at this case, the Supreme Court decided to apply a new standard. Basically, the Court said that the law against taking peyote was a law that applied to everybody, and wasn’t enacted for the purpose of restricting the practices of the Native American Church, so someone can’t just take peyote as part of his religion and get away with it. The new rule, then, was this: one may freely practice his religion unless it’s against the law.
Well, this just stunk to high hell, to the point that even the non-peyote-taking members of Congress decided to pass the Religious Freedom Restoration Act of 1993 (RFRA). [5] What the Act restored was not complete religious freedom, but the Sherbert test. So, for purposes of federal law, the government may only restrict religious freedom if it has a good reason and can’t do what it wants to do any other way. The RFRA doesn’t apply to state laws, however [6], and state laws only have to meet the standard of the Smith case.
So, where does that leave us? The HHS contraception mandate is federal law, so a compelling governmental interest will have to be shown in order to uphold it. To that end, the Obama Administration will argue from the hedonistic Malthusianism that has permeated the dominant paradigm of Western culture. That the Court would rule, once and for all, that our governments don’t get to infringe on religious practices and beliefs just because they think they have a good idea is probably too much to hope for.
Should the Court uphold the mandate we might well receive the curse of living in interesting times. Sometimes civilizations collide, and we might see the irresistible force of the American government encounter the immovable object of the Catholic Church.
Stay tuned.
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