Update from the Editor: On Friday, Jan. 1o, the USCCB officially reacted to President Obama’s “compromise” regarding the recent HHS ruling. The USCCB has declared that a “rescission” of the mandate is the “only complete solution.” You can read their statement here.
The following is Part 2 in a two-part article. For Part 1 go here.
The Birth Control Mandate is Unconstitutional
The President’s new mandate falls well outside the Founding generation’s view of and constitutional protections accorded to religious freedom in this country. Religious liberty and the right to practice one’s religion, to obey one’s conscience, and to adhere closely to one’s creed free from government interference hold a revered place in our history and canon of constitutional law. Having witnessed the British Crown’s encroachments upon religion and religious exercise, America’s Founders sought to ensure that the government would neither establish a state-run religion, nor trample the right of a free people to establish their houses of worship as they saw fit. In England, for example, King Henry II had ordered the bishop of Winchester “to hold a free election, but forbid you to elect anyone but Richard my clerk.” The Act of Supremacy of 1534 established the British monarch as the head of the Church of England, and the Act in Restraint of Annates authorized him to appoint all of the Church’s senior officials. By 1662, the Uniformity Act had limited church ministers only to those who formally agreed to prescribed tenets and pledged to conduct worship services set out in the Book of Common Prayer. Refusing the pledge deprived a minister of any “Spiritual Promotions.”8 Familiar with these and other deprivations, our Founders solemnly declared in the Constitution’s First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
James Madison, “the leading architect of the religion clauses of the First Amendment,”9 had occasion to practice what he had so often preached regarding religious liberty, and to shed light on the meaning of the Religion Clauses he had helped to secure.10 In 1806, John Carroll, the first Catholic bishop in the United States, asked for the Executive Branch’s opinion concerning who should direct the Catholic Church’s affairs in the new Louisiana Territory. Madison, then serving as President Jefferson’s Secretary of State, conferred with the President and sent word to the bishop that selecting church “functionaries” was “entirely ecclesiastical” and should therefore be left to the Church’s judgment. “The ‘scrupulous policy of the Constitution in guarding against a political interference with religious affairs,’ Madison explained, prevented the Government from rendering an opinion on the ‘selection of ecclesiastical individuals.’”11
Since Madison’s day, the Religion Clauses have engendered and endured legal controversy, and the courts have not always been perfectly clear or consistent in their First Amendment interpretation. But the Supreme Court has long-recognized “a spirit of freedom for religious organizations, an independence from secular control or manipulation – in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”12 That freedom has historically included both the believer’s internal belief and, as the First Amendment states, the outward exercise of that belief – or, what Madison called, “the manner of discharging” one’s religion.13 Thus, the First Amendment allows for actions to speak louder than words. The Obama Administration apparently does not share the Court’s spirit in these matters. As such, the birth control mandate would be unlikely to survive the judicial scrutiny.
For decades, the Supreme Court has understood the Free Exercise clause to protect religious individuals and organizations from secular laws that would “substantially burden” their free exercise of religion. Courts have applied a multi-part legal test that, first, looks to whether the law in question is a neutral, generally-applicable law, not one specifically aimed at religious expression. Assuming that a law is neutral in its application, courts then ask two related questions: does the law’s burden on religion serve a “compelling government interest,” and is it “narrowly tailored” or the least restrictive means to furthering the government’s interest? In sum, even a neutral law may not substantially burden religious exercise unless that burden is the least restrictive means necessary to serving a compelling government interest.