There is an interesting divide on legal analysis of Obama's contraception decision. On the left, at least as exemplified by Linda Greenhouse of the Times, we are told that the law says one thing; over on the right, the law is presented with an important difference. Spoiler Alert - we will eventually see that the reality-based commuity has not yet made a full reconciliation with reality.
Here is Ms. Greenhouse on the background to the relevant religious freedom issues:
In the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees, opposition from the Catholic church and its allies is making headway with a powerfully appealing claim: that when conscience and government policy collide, conscience must prevail.
What they now claim is a right to special treatment: to conscience that trumps law.
But in fact, that is not a principle that our legal system embraces. Just ask Alfred Smith and Galen Black, two members of the Native American Church who were fired from their state jobs in Oregon for using the illegal hallucinogen peyote in a religious ceremony and who were then deemed ineligible for unemployment compensation because they had lost their jobs for “misconduct.” They argued that their First Amendment right to free exercise of religion trumped the state’s unemployment law.
In a 1990 decision, Employment Division v. Smith, the Supreme Court disagreed. Even a sincere religious motivation, in the absence of some special circumstance like proof of government animus, does not merit exemption from a “valid and neutral law of general applicability,” the court held. Justice Antonin Scalia wrote the opinion, which was joined by, among others, the notoriously left wing Chief Justice William H. Rehnquist.
A broad coalition of conservative and progressive religious groups pushed back hard, leading to congressional passage of the tendentiously titled Religious Freedom Restoration Act. It provided that a free exercise claim would prevail unless the government could show a “compelling” reason for holding a religious group to the same legal requirements that applied to everyone else. After a Catholic church in Texas invoked that law in an effort to expand into a landmark zone where no new building was permitted, the Supreme Court declared the Religious Freedom Restoration Act unconstitutional as applied to the states. The law remains in effect as applied to the federal government, although its full dimension remains untested.
First, very modest props to Ms. Greenhouse, who at least acknowledges the relevance of the 1993 Religious Freedom Restoration Act. At the Daily Kos, the legal clock stopped in 1990 with Smith; the ensuing Congressional pushback (under a Democratic Congress and President) is not mentioned. TPMDC notes that the 1993 Act exists and might apply but finds an expert to assure them that, since the insurer provides the contraception coverage "for free!" (all the premiums collected from the employer carefully being applied elsewhere), the act won't be relevant.
Over on the right, the WSJ offers analysis from two prominent righties, Ed Whelan and David Rivkin. They amend and extend Ms. Greenhouse's explanation of the 1993 act:
The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.
Wait a second - that "least restrictive" qualifier seems to loom large. It is not enough that the goverment has a compelling interest - it needs to demonstrate that other methods of advancing that interest won't be adequate. That caveat makes a bit of a hash of legal anaysis such as this from Ms. Greenhouse:
The question would then be whether the case for the mandate, without the broad exemption the church is demanding, is sufficiently “compelling.” Such a case would pit the well-rehearsed public health arguments (half of all pregnancies in the United States are unintended, and nearly half of those end in abortion – a case for expanded access to birth control if there ever was one ) against religious doctrine.
Really? Maybe the case will hinge on whether the insurance mandate is the best way to advance this interest. Back to Rivkin and Whelan:
Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are least restrictive of the employer's religious freedom? Plainly, the answer is no. There are plenty of other ways to increase access to contraceptives that intrude far less on the free exercise of religion.
Health and Human Services itself touts community health centers, public clinics and hospitals as some of the available alternatives; doctors and pharmacies are others. Many of the entities, with Planned Parenthood being the most prominent, already furnish free contraceptives. The government could have the rest of these providers make contraceptive services available free and then compensate them directly. A mandate on employers who object for religious reasons is among the most restrictive means the government could have chosen to increase access.
The mandate also fails the "compelling government interest" test. Given the widespread availability of contraceptive services, and the far less restrictive other ways to increase their availability, the government can hardly claim it has a "compelling" interest in marginally increasing access to birth control by requiring objecting employers to join in this effort.
Ms. Greenhouse simplifies the 1993 law down to a rule that says the government can trample any religious belief it chooses if the objective is good. Rivkin and Whelan find the law to be more nuanced. As to the actual text, well, no prizes for guessing who is right:
(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Interestingly, Ms. Greenhouse was aware of this nuance when she wrote about the law back in 1997:
Supported by President Clinton and defended by his administration in court, it provided that no level of government could enforce laws that ''substantially burden'' religious observance without demonstrating a ''compelling'' need to do so and without using the ''least restrictive means available.''
For purposes of evaluating ObamaCare from the left, "least restrictive" seems to have become water under the bridge since 1997. Well, we have all passed a lot of water since then.
Going forward, a lot of earnest liberals who still take the Times seriously will insist that, based on the analysis of the Times leading Supreme Court reporter (and supplemented by the DKOS or TPDMC), the contraception mandate is A-OK. And righties will cite the WSJ and insist the opposite. I see Two Americas clashing at cocktail parties all over this great nation.
MORE: The White House was advised of the issues:
Ambassador Douglas Kmiec, professor of constitutional law at Pepperdine University School of Law, does not agree with the president's decision, but his analysis of Supreme Court rulings suggests that it is uncertain how courts will decide these cases.
"I would have to tell [President Obama], that my honest answer about the law is that I think it is unclear as to what is required here," Kmiec said, because of the Supreme Court's ruling in Employment Division v. Smith (1990)
...Congress attempted to overturn the Smith decision by passing the Religious Freedom Restoration Act (RFRA) in 1993. The Supreme Court then overturned RFRA, at least as it applies to state law, which leaves its application at the federal level unclear, Kmiec explained.
There has been one case, though, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal (2006), in which the Supreme Court did say that RFRA applies to federal law. That case "would be taken account of," Kmiec said, but "I don't think it's clear, it's unmistakable, that it does."
Kmiec, who worked in the Obama administration as ambassador to Malta, presented his legal opinion to the White House in November.
"I think there is an argument both ways. So, I'd have to say to the president, that one is a question mark," he said.
Nevertheless, Kmiec has communicated to the president that a broad religious exemption should be given, even if it is not required.
"The way I put that … when I gave him my advice in November was, this is an opportunity for you to do more than the law requires. You could have said that you admire the millions of people that have been helped and assisted and continue to be helped and assisted by the work of the Church and you want to go the extra mile, even if the Constitution doesn't demand it of you."
Interesting - as described by Ms. Greenhouse, the 1997 decision was about Federalism and the power of the states versus the Federal government, not a separation of powers scuffle between Congress and the Supreme Court:
Rather, this was the third major Supreme Court decision in as many years, grounded in three separate lines of constitutional analysis, to reject Congress's expansive interpretation of its own powers and to take a generous view of the role of the states in the Federal system.
Justice Kennedy said that by requiring ''searching judicial scrutiny'' of any state law that had the effect of making it more difficult for people to practice their religion, the Religious Freedom Restoration Act was a ''considerable intrusion into the states' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.''
And the 2006 case seemed clear enough as to the applicability to Federal law.
BETTER LATE THAN NEVER: Presumably this has been beaten to death at the Volokh Conspiracy. Does anyone have links to especially cogent articles there?
JUMP BALL: From Thomson-Reuters:
Eugene Volokh, a law professor at University of California Los Angeles, said different courts could reach different conclusions on those questions. He said the latest revision to the rule doesn't necessarily defeat the religious groups' claims, which he described as plausible.
"I suspect that many institutions will find the compromise inadequate, because they'll still see the new rule as requiring complicity with sin," Volokh said.
But timing is everything:
The challengers also face the burden of proving that the issue is ripe enough for a lawsuit. Until the government finalizes the rule, no one can bring litigation, said Laura MacCleary of the Center for Reproductive Rights, adding that courts would likely dismiss the suits.