|The First Amendment's Free Exercise Clause seems to provide a ready answer to this dilemma. It says that Congress shall make "no law" prohibiting the free exercise of religion. So doesn't that mean the Catholic employers are entitled to an exemption?
Perhaps. But the Supreme Court has never interpreted the Free Exercise Clause so literally. After all, what if a sect's religious practice involved human sacrifice, or marrying off 12 year old girls, or using psychedelics? Surely, we would not want to exempt these practices from laws that forbid murder, child abuse, or illegal drug use.
But what about a law that interferes with a more innocuous religious practice? For example, what if there had been no legislative exemption during Prohibition for the use of wine for sacramental purposes? Should the courts have said the Free Exercise Clause commanded an exemption?
Maybe the solution is for judges to weigh the competing religious and governmental interests in each case. On one side of the scale, judges could consider the burden a law imposes upon someone's religious practice. On the other side, judges could consider the strength of a government's policy.
So, for instance, a judge could easily conclude that the government's interest in preventing murder is sufficiently strong to trump a religious adherent's interest in conducting human sacrifice. And, conversely, a judge could conclude that the interest in prohibiting alcohol consumption would not be undermined by a limited exemption for sacramental use.
That sounds easy enough, and in fact it mirrors the approach the Supreme Court used for many years in applying the Free Exercise Clause. But in 1990, the Supreme Court reversed course and said it was getting out of the business of trying to balance religious interests against governmental policies.
Justice Antonin Scalia explained that balancing these competing interests was an impossible task. How, for instance, could a judge second-guess a religious believer's assertion that particular conduct was vitally important to his faith? And how, except in obvious cases like human sacrifice, could a judge determine whether the "apple" of governmental policy outweighs the "orange" of a religious believer's faith?
Scalia declared that the Free Exercise Clause requires no exemptions from "neutral laws" that apply to everyone. Indeed, he warned that if it did permit exemptions, it would allow every religion to "be a law onto itself." Given the vast diversity of religious beliefs in the United States, it would open the door to challenges to a myriad of civic obligations: compulsory military service, child labor laws, animal cruelty laws, compulsory vaccination laws, and drug laws.
If a religious group wants an exemption, Scalia said, it should go to its legislators and ask for one. But the Constitution does not mandate an exemption.
Many religious and civil liberties groups were aghast at Scalia's decision and successfully lobbied Congress to enact the Religious Freedom Restoration Act. RFRA, which currently applies to federal laws burdening religion, requires courts to return to the old regimen of weighing religious burdens against government interests.
So which approach makes more sense: Scalia's approach or the old regimen restored by RFRA? Let's try doing the RFRA balancing approach in the contraceptive mandate case.
How much does it burden the religious principles of a Catholic university or hospital if its employee health insurance has to cover contraceptives? (Focus on the religious burden and not the economic one because policies covering contraceptives may not be more expensive since unintended pregnancy costs are avoided.)
And how important is the government's interest in making sure that the women employees of these institutions have access to contraceptives? Consider that many of these employees are not Catholic or are Catholics who want to use contraceptives, and that women have much higher health care costs than men when contraceptives are not insured.
How should the balance come out?
Alan Garfield is a professor at the Widener University School of Law.