Churches that preach the immorality of contraception are excused from federally imposed obligations to promote the practice. But federal law will soon require that the employees of hospitals and other charitable institutions run by such churches—notably, the Catholic Church—have the option of adding coverage for contraception to the health insurance offered by their employer. Whether or not the cost of such coverage is passed to insurers, the question remains, does the requirement violate the First Amendment guarantee of “free exercise” of religion by such churches?

Let us suppose the formation of a new religious sect centered in, say, Florida. Seeking novel forms of worship, the sect, misunderstanding Exodus 32:1–6, elects to pray to a golden calf, made of melted jewelry donated by the faithful.

Like Moses descending from Mount Sinai, the state legislature is appalled. A statute is passed making it a felony to melt gold for this purpose. Leaders of the sect persist, and an indictment is brought against them. The leaders move to dismiss the indictment as a violation of the free-exercise clause. The result, surely, is dismissal of the indictment. That is the constitutional law received from the Supreme Court in Lukumi Babalu (1993), in which the practice of animal sacrifice by the Santeria religion, a Cuban synthesis of African and Catholic rituals, was protected from the prohibition of the statute.

Now suppose that the gold reserves of the United States are suddenly depleted (as happened in the 1960s). To strengthen gold holdings, Congress enacts a statute mandating the prompt sale by citizens to the Treasury of all gold objects for a fair price. An incidental effect of the statute is to prevent the melting of gold by the new sect. An indictment of violators follows. Again, the accused move to dismiss on the strength of the free-exercise clause. What would the outcome be?

In Employment Division v. Smith (1990), the Supreme Court decided that Oregon state employees who used peyote, a hallucinogen, for religious purposes, could be dismissed and denied unemployment compensation for violating a general prohibition on the use of such drugs.  Justice Scalia, speaking for the Court, approved the denial of compensation. “We have never held,” he said, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” That is, a lawful, generalized prohibition is not rendered unconstitutional when incidentally applied to a particular religious practice. (In 1993, Congress, displeased with the result in Smith, attempted to impose a stricter standard—42 U.S.C. § 2000bb-1. It was held unauthorized by the Fourteenth Amendment.)

Let us assume that the Affordable Care Act is a valid exercise by Congress of the commerce or taxing-power authorizing insurance coverage for general health care (an issue shortly to be decided by the Supreme Court). The new health-care law would then, as in Smith, involve “conduct that the state is free to regulate.” That would seem to legitimate the obligation of Church-run institutions to make available to their employees insurance with coverage for contraception. 

That the new requirement imposed on church-related institutions would not violate the free-exercise clause will not stop opponents from asserting the opposite. We are passing through an intensely political moment in our history, and opponents of the requirement may be expected to try to beat down the government’s proposal, aided by the complexity of the issue. The outcome is uncertain.

Related: Contraception Cudgel, by E. J. Dionne Jr.

Bad Reaction, by the Editors

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).
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