SCOTUS and Religious Freedom's Slippery Slope

The ObamaCare contraceptive mandate has caught a lot of flack from Catholics who claim that it violates the free exercise rights of church-affiliated employers by forcing them to include birth control in employee health care plans.  The outrage against the mandate is justified, the narrative runs, and the case against the Health and Human Services rule is a slam-dunk.

That overconfidence evaporates like spit on a hot tailpipe the minute we start thumbing through a few Supreme Court opinions.  The problem: the free exercise clause is the First Amendment's redheaded stepchild.  The root cause of the problem: "greater good through government" thinking like that of Georgetown's Catholic elites, and the neo-Marxist fascination with social justice that seduces bishops gagging on "free" abortion pills into attacking Paul Ryan's budget proposal as "un-Catholic."

We can't just wash our hands of this cognitive dissonance by blaming it on the progressives.  Restricting the scope of the free exercise clause to promote the greater good has always been a bipartisan sport.  It began innocently enough.  Chief justice Burger reminded us of this in Bowen v. Roy, a 1986 free exercise case involving the denial of government benefits:

Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not.[1]

Drawing this distinction is both practical and necessary.  Few would insist, for instance, that the government must tolerate the practice of human sacrifice by self-anointed Druids.  To say nothing of the squabbling over sharia law.  But some "principles" this observation has given birth to are not so innocent.  In fact, they sound suspiciously like Obama's willingness to sacrifice First Amendment protections on the altar of women's reproductive health.  Here's Burger once again in Bowen:

To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.  Religious beliefs can be accommodated, but there is a point at which accommodation would radically restrict the operating latitude of the legislature.[2]

There's a subtle shift taking place here.  Organized society, not the Constitution, guarantees religious freedom.  And the limits on accommodation are ultimately linked to belief.  If Burger's mealy-mouthed dissembling had come from Barack Obama or Ruth Bader Ginsburg, it would have been instantly recognizable as the core premise of progressive ideology: blind devotion to the negative rights of an inadequate Constitution obstructs our progress toward social justice.

Not surprisingly, providing the legislature sufficient operating latitude to clear the path to the greater good required a redefinition of "coercion."  So Burger thoughtfully provided one, packaged with a negative vote on individual rights and a bow to the progressive's neutrality doctrine.

We are not unmindful of the importance of many government benefits today or of the value of sincerely held religious beliefs.  However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications.[3]

This hair-splitting should sound familiar.  One of the constitutional challenges to ObamaCare brings exactly this concept of compulsion without coercion to center stage: is the federal government coercing states to accept ObamaCare's Medicaid reform with the budget-crushing threat to withdraw all federal Medicaid funding, or just giving them a Cass Sunstein nudge into the future, for the greater good?

According to Bowen, what counts is not individual liberty, or the sincerity of religious belief, but "a policy decision by a government that it wishes to treat all applicants alike."  If government "does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference," then it shouldn't have to.  And that's sound policy because it's always a good idea "to avoid any appearance of favoring religious over nonreligious applicants"[4].

Our innocent distinction has now morphed into the outright denial of individual liberty -- in fact, of individuality itself -- and an alarming trivialization of religious belief.  Not in the name of constitutionality, but out of deference to bureaucrats and the non-religious.

And just what was all this fuss about?  Denying medical benefits and food stamps to Little Bird of the Snow because her parents refused, on religious grounds, to provide her Social Security number.  The Abenaki religion taught that doing so would dehumanize her by compromising her spiritual growth.  The Court yawned.  And excluded Little Bird of the Snow from the greater good.

A second Burger opinion from the 1980s is even more ominous.  United States v. Lee denied an Amish employer a religious exemption from withholding employee Social Security tax.  To justify that decision, the chief justice drew a distinction between the self-employed and those employed by others: the self-employed got the exemption, apparently because they could only coerce themselves; employers and employees did not.  Once again, Burger's reasoning sounds eerily like Obama's, and in a way that should be quite troubling to the bishops:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.  Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.[5]

Let's hear it for the abortion pill mandate, the death of religious oppression, access to contraceptives for women, and the trivialization of religious belief.  A final piece of bad news for the bishops is that the Lee majority carried the day nine-zip, with the only deviation a concurrence from Justice Stevens.

In 1988, Sandra Day O'Connor put Burger's coercion-free coercion theory to the test in Lyng v. Indian Cemetery Protection Association.  The media's favorite "moderate" breezily consigned an entire Native American religion to the ash heap of history so the United States Forest Service could build a logging road through sacred lands.  Scalia and Rehnquist joined her opinion; only the ultra-liberal Brennan, Marshall, and Blackmun stood tall for the Indians.

When it comes to trivializing religious belief, no one holds a candle to O'Connor.  Her babbling in Lyng sounds almost like Bill Clinton trying to explain what "is" is.  The Court, O'Connor opines, could protect only a religious belief it knew to be "true."  But since the Court can't "determine the truth of the underlying beliefs that lead to the religious objections," it can't "weigh the adverse effects on the Indian respondents."  Sorry, the Indians lose whether their belief is true or not.  It just doesn't matter that "the challenged Government action would interfere significantly" with their "ability to pursue spiritual fulfillment according to their own religious beliefs"[6].

O'Connor's form-over-substance insult to the Framers is entirely irrelevant to the core First Amendment issue.  The Indians would not be "coerced by the Government's action into violating their religious beliefs," nor would the government "penalize religious activity by denying" them "an equal share of the rights, benefits, and privileges enjoyed by other citizens"[7].  No, as the Forest Service's own study concluded, compromising the sacred sites would effectively destroy the Indians' religion by preventing the performance of its most sacred rituals.  No "coercion" necessary.

Besides, O'Connor gushes, even though the Forest Service ignored the recommendation not to build the road, "many ... ameliorative measures were planned."  Care was taken not to destroy "sites where specific rituals take place," and "audible intrusions" were kept to a minimum.  Steps were also taken to "reduce the visual impact of the road on the surrounding country"[8].  How discreet.  Sort of like mailing porn in a plain brown envelope.  Or having insurers provide abortion pills "for free."  Never mind that unelected bureaucrats were destroying a religion; they were being thoughtful about it.

Seen from the perspective of Lee, Bowen, or Lyng, the bishops are clearly on the wrong side of the issue.  The Obama administration knows that, and is working overtime to frame the dispute so that it fits the Burger paradigm: a uniformly applicable rule neutral on its face saving hapless women who are being denied access to health care by an employer imposing its faith on them.

Should the bishops be on the losing side?  Certainly not.  The HHS strike against the Catholics was direct and brutal.  Will they be?  Ask the Indians.  In the meantime, perhaps the bishops might show enough common sense to resist liberation theology and its siren song of the greater good through government power that has corrupted the Court's free exercise doctrine.


[1][1] Bowen v. Roy, 476 U.S. 693 (1986), 699.

[2] Id., at 703 (emphasis added, internal quotes omitted).

[3] Id., at 703-704 (emphasis added).

[4] Id., at 707.

[5] United States v. Lee, 455 U.S. 252 (1982), 261.

[6] Lyng v. Northwest Indian Cemetery Protection Association, 485 U.S. 439 (1988), 449-450.

[7] Id., at 449.

[8] Id., at 454.

The ObamaCare contraceptive mandate has caught a lot of flack from Catholics who claim that it violates the free exercise rights of church-affiliated employers by forcing them to include birth control in employee health care plans.  The outrage against the mandate is justified, the narrative runs, and the case against the Health and Human Services rule is a slam-dunk.

That overconfidence evaporates like spit on a hot tailpipe the minute we start thumbing through a few Supreme Court opinions.  The problem: the free exercise clause is the First Amendment's redheaded stepchild.  The root cause of the problem: "greater good through government" thinking like that of Georgetown's Catholic elites, and the neo-Marxist fascination with social justice that seduces bishops gagging on "free" abortion pills into attacking Paul Ryan's budget proposal as "un-Catholic."

We can't just wash our hands of this cognitive dissonance by blaming it on the progressives.  Restricting the scope of the free exercise clause to promote the greater good has always been a bipartisan sport.  It began innocently enough.  Chief justice Burger reminded us of this in Bowen v. Roy, a 1986 free exercise case involving the denial of government benefits:

Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not.[1]

Drawing this distinction is both practical and necessary.  Few would insist, for instance, that the government must tolerate the practice of human sacrifice by self-anointed Druids.  To say nothing of the squabbling over sharia law.  But some "principles" this observation has given birth to are not so innocent.  In fact, they sound suspiciously like Obama's willingness to sacrifice First Amendment protections on the altar of women's reproductive health.  Here's Burger once again in Bowen:

To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.  Religious beliefs can be accommodated, but there is a point at which accommodation would radically restrict the operating latitude of the legislature.[2]

There's a subtle shift taking place here.  Organized society, not the Constitution, guarantees religious freedom.  And the limits on accommodation are ultimately linked to belief.  If Burger's mealy-mouthed dissembling had come from Barack Obama or Ruth Bader Ginsburg, it would have been instantly recognizable as the core premise of progressive ideology: blind devotion to the negative rights of an inadequate Constitution obstructs our progress toward social justice.

Not surprisingly, providing the legislature sufficient operating latitude to clear the path to the greater good required a redefinition of "coercion."  So Burger thoughtfully provided one, packaged with a negative vote on individual rights and a bow to the progressive's neutrality doctrine.

We are not unmindful of the importance of many government benefits today or of the value of sincerely held religious beliefs.  However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications.[3]

This hair-splitting should sound familiar.  One of the constitutional challenges to ObamaCare brings exactly this concept of compulsion without coercion to center stage: is the federal government coercing states to accept ObamaCare's Medicaid reform with the budget-crushing threat to withdraw all federal Medicaid funding, or just giving them a Cass Sunstein nudge into the future, for the greater good?

According to Bowen, what counts is not individual liberty, or the sincerity of religious belief, but "a policy decision by a government that it wishes to treat all applicants alike."  If government "does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference," then it shouldn't have to.  And that's sound policy because it's always a good idea "to avoid any appearance of favoring religious over nonreligious applicants"[4].

Our innocent distinction has now morphed into the outright denial of individual liberty -- in fact, of individuality itself -- and an alarming trivialization of religious belief.  Not in the name of constitutionality, but out of deference to bureaucrats and the non-religious.

And just what was all this fuss about?  Denying medical benefits and food stamps to Little Bird of the Snow because her parents refused, on religious grounds, to provide her Social Security number.  The Abenaki religion taught that doing so would dehumanize her by compromising her spiritual growth.  The Court yawned.  And excluded Little Bird of the Snow from the greater good.

A second Burger opinion from the 1980s is even more ominous.  United States v. Lee denied an Amish employer a religious exemption from withholding employee Social Security tax.  To justify that decision, the chief justice drew a distinction between the self-employed and those employed by others: the self-employed got the exemption, apparently because they could only coerce themselves; employers and employees did not.  Once again, Burger's reasoning sounds eerily like Obama's, and in a way that should be quite troubling to the bishops:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.  Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.[5]

Let's hear it for the abortion pill mandate, the death of religious oppression, access to contraceptives for women, and the trivialization of religious belief.  A final piece of bad news for the bishops is that the Lee majority carried the day nine-zip, with the only deviation a concurrence from Justice Stevens.

In 1988, Sandra Day O'Connor put Burger's coercion-free coercion theory to the test in Lyng v. Indian Cemetery Protection Association.  The media's favorite "moderate" breezily consigned an entire Native American religion to the ash heap of history so the United States Forest Service could build a logging road through sacred lands.  Scalia and Rehnquist joined her opinion; only the ultra-liberal Brennan, Marshall, and Blackmun stood tall for the Indians.

When it comes to trivializing religious belief, no one holds a candle to O'Connor.  Her babbling in Lyng sounds almost like Bill Clinton trying to explain what "is" is.  The Court, O'Connor opines, could protect only a religious belief it knew to be "true."  But since the Court can't "determine the truth of the underlying beliefs that lead to the religious objections," it can't "weigh the adverse effects on the Indian respondents."  Sorry, the Indians lose whether their belief is true or not.  It just doesn't matter that "the challenged Government action would interfere significantly" with their "ability to pursue spiritual fulfillment according to their own religious beliefs"[6].

O'Connor's form-over-substance insult to the Framers is entirely irrelevant to the core First Amendment issue.  The Indians would not be "coerced by the Government's action into violating their religious beliefs," nor would the government "penalize religious activity by denying" them "an equal share of the rights, benefits, and privileges enjoyed by other citizens"[7].  No, as the Forest Service's own study concluded, compromising the sacred sites would effectively destroy the Indians' religion by preventing the performance of its most sacred rituals.  No "coercion" necessary.

Besides, O'Connor gushes, even though the Forest Service ignored the recommendation not to build the road, "many ... ameliorative measures were planned."  Care was taken not to destroy "sites where specific rituals take place," and "audible intrusions" were kept to a minimum.  Steps were also taken to "reduce the visual impact of the road on the surrounding country"[8].  How discreet.  Sort of like mailing porn in a plain brown envelope.  Or having insurers provide abortion pills "for free."  Never mind that unelected bureaucrats were destroying a religion; they were being thoughtful about it.

Seen from the perspective of Lee, Bowen, or Lyng, the bishops are clearly on the wrong side of the issue.  The Obama administration knows that, and is working overtime to frame the dispute so that it fits the Burger paradigm: a uniformly applicable rule neutral on its face saving hapless women who are being denied access to health care by an employer imposing its faith on them.

Should the bishops be on the losing side?  Certainly not.  The HHS strike against the Catholics was direct and brutal.  Will they be?  Ask the Indians.  In the meantime, perhaps the bishops might show enough common sense to resist liberation theology and its siren song of the greater good through government power that has corrupted the Court's free exercise doctrine.


[1][1] Bowen v. Roy, 476 U.S. 693 (1986), 699.

[2] Id., at 703 (emphasis added, internal quotes omitted).

[3] Id., at 703-704 (emphasis added).

[4] Id., at 707.

[5] United States v. Lee, 455 U.S. 252 (1982), 261.

[6] Lyng v. Northwest Indian Cemetery Protection Association, 485 U.S. 439 (1988), 449-450.

[7] Id., at 449.

[8] Id., at 454.