Last Friday the Trump administration unveiled regulations that let a wider range of employers claim a religious exemption from the Obamacare mandate requiring health plans to cover birth control. Rep. Nita Lowey, D-N.Y., responded by invoking The Handmaid’s Tale, the Margaret Atwood novel, now a Hulu series, set in a patriarchal dystopia where the government controls women’s bodies and forbids them to read, write or work outside the home.
Lowey is not the only critic of the new regulations who conflates freedom from coercion with a right to forcibly extracted subsidies. Such overwrought reactions obscure the real issue raised by religious exceptions to the contraceptive mandate: When does respect for religious freedom require relieving some people of the obligation to obey rules that everyone else has to follow?
Never, according to the Supreme Court, which in 1990 ruled against Alfred Smith and Galen Black, who were denied unemployment benefits after being fired from their jobs as drug rehabilitation counselors because they used peyote in Native American Church ceremonies. Writing for the majority, Justice Antonin Scalia said letting the First Amendment’s guarantee of religious freedom trump a “neutral, generally applicable law” such as Oregon’s peyote ban would create “a system in which each conscience is a law unto itself.”
That decision rejected the approach that the Court had taken in earlier cases, which required the government to justify substantial burdens on religious freedom by showing that they were the least restrictive means of serving a compelling state interest. The peyote ruling provoked strong criticism from across the political spectrum and inspired the Religious Freedom Restoration Act, which Congress passed nearly unanimously in 1993.
RFRA restored the compelling-interest test that the Supreme Court used until 1990. Although the Court ruled in 1997 that RFRA cannot be constitutionally applied to state and local laws, it is still binding on the federal government, and it was the main basis for legal challenges to the contraceptive mandate.
The American Civil Liberties Union, which immediately filed a lawsuit against the new, broader religious exemption, supported RFRA. Later the ACLU, whose Oregon chapter helped represent Smith and Black, successfully argued that RFRA required religious exceptions to the federal ban on the psychedelic dimethyltryptamine and the U.S. Army’s dress and grooming rules.
More recently, however, the ACLU has soured on RFRA, which it describes as “a sword to discriminate against women, gay and transgender people, and others.” The organization’s birth control lawsuit, which argues that the new rules “give employers license to discriminate against women,” does not even mention RFRA. When it comes to religious liberty, it seems, the ACLU draws the line at beliefs that offend progressive sensibilities.
The ACLU claims the new birth control regulations let businesses, nonprofit organizations and universities “impose their religious beliefs on their employees and students.” New York Times columnist Gail Collins likewise thinks beneficiaries of the exemption “are trying to impose their own personal theology on Americans who don’t share it.”
Contrary to these formulations, employers who do not want to be complicit in what they believe to be sin are not trying to impose anything on anyone. They are trying to avoid the government’s imposition of a legal obligation that violates their religious beliefs.
It is hard to see how that imposition can be justified as the least restrictive means of serving a compelling state interest, as RFRA requires. In fact, the Supreme Court already has ruled that it can’t, at least with respect to “closely held” private businesses.
Still, Scalia had a point: The government cannot and should not accommodate every religious belief. A sincere belief in the religious necessity of human sacrifice, to use a hoary example, does not require an exception to the definition of murder.
Beyond such easy cases, the justifiable limits to religious freedom are hazier. Pretending that a six-year-old regulation created a fundamental, irrevocable right to free birth control does not get us any closer to figuring them out.