Advancing a Free Society

On the Constitutionality of the Contraception Mandate

Wednesday, March 7, 2012

There are many horrible features about the President’s birth control mandate, with respect to religious institutions.  The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.

To that claim, there are several replies.  The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual.  That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world.  Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core.  The issues of abortion, contraception, and sterilization get far closer to the core.

It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike.  The position of neutrality is taken inUnemployment Division v. Smith, a decision written by Justice Scalia.  That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.

Continue reading Richard Epstein…