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The federal government’s new administrative law governing contraception coverage in health insurance plans has caused a great deal of controversy. For some, it is truly a troubling issue. Others are displaying some serious faux outrage in yet another attempt to paint President Obama as some left wing radical. For those of us who have retained the abilities to think rationally and have an adult conversation, this little dust-up has provided us with the opportunity to discuss government power and individual freedoms.
Despite what the screaming heads of conservative talk radio are bellowing, the Obama Administration did not just invent this power to regulate health insurance and compel compliance with the law. As a matter of fact, the power to force compliance despite religious objection was restored to the government during the George H.W. Bush Administration. But that’s the end of the story, let’s start from the beginning.
In 1874, Congress passed a law that outlawed polygamy. At the time, Congress was directly governing the Utah Territory. Many Mormons practiced polygamy at the time, so they challenged the law in court on the grounds that it violated their freedoms under the “Free Exercise” Clause of the First Amendment. In 1879, in the case of Reynolds v. United States, the Supreme Court unanimously upheld the law. The court said “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” In other words, while individuals were free to believe whatever they wished under the Free Exercise Clause, this did not grant them the freedom to act any way they wished. This “test” is known as the Valid Secular Policy test. Under this standard of review established by the court, a law is presumed to be valid if there is a rational basis for the law and it is generally applicable to all persons and does not single out a particular religion. The burden of proof is placed on the individual to show that they should be exempt from the law based on religious reasons. This is a broad view of government power.
The Valid Secular Policy test remained in effect all the way to the early 1960s when the Warren Court, which generally held more liberal views on civil rights and liberties, began to alter the standard. Although a few previous cases hinted at a change in the way the Supreme Court viewed the Free Exercise Clause, it was not until 1963 and the Sherbert v. Verner case that the court’s new view came to full fruition.
Adell Sherbert was a member of the Seventh-Day Adventist Church and observed Saturday as a religious holiday. According to her beliefs, she could not work on this day. She had trouble finding work in the South Carolina textile mills because they all were in operation on Saturdays. She eventually filed an unemployment claim. She was denied by the state and took her case all the way to the Supreme Court.
The court took the opportunity provided by this case to completely overhaul the precedent established under the Reynolds case. The Warren Court found the test too restrictive of religious freedom, so they created a new standard. Under what is known as the Sherbert-Yoder test, government may enact laws that restrict the free exercise of religion, but they must be pursuing a compelling government interest and be doing so in the least restrictive means possible. The Sherbert-Yoder test provides for expansive claims of religious freedom and places the burden of proof on the government to show that they are acting properly.
Sherbert-Yoder remained in effect through the late 1980s, when conservative Reagan and Bush appointees pushed for a change to the standard. That change came in 1990 in the case of Employment Division, Department of Human Resources of Oregon v. Smith. In this case, Native American employees of a drug rehab service were terminated from their jobs for using peyote, a controlled substance in Oregon, during a religious ritual. When they applied for unemployment, they were denied. They challenged this decision under the Free Exercise Clause and cited the Sherbert-Yoder test.
Newly appointed conservative Justice Antonin Scalia wrote the majority opinion in the case. In doing so, Justice Scalia jettisoned the Sherbert-Yoder test, saying “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” With this decision, Justice Scalia returned the Supreme Court to the view it had adopted in the Reynolds case, the Valid Secular Policy test. If the government is exercising a power it has been granted, a law will be upheld even if it incidentally interferes with religious practices.
Fast-forward to today and the controversy over contraception and women’s health coverage. Conservatives are hopping mad about the blanket coverage rule, but the Smith decision is still the precedent being used by the courts. Ironically, it was not some liberal firebrand who limited the reach of the Free Exercise Clause, but the one justice who conservatives most admire, Justice Scalia.
In this situation, the Obama Administration is following what the Supreme Court has said was valid action. The federal government certainly has the power to regulate interstate commerce. The healthcare industry accounts for nearly one-fifth of the entire US economy. Policies pursued and laws enacted regarding healthcare under the Commerce Clause would certainly appear to fall under the Smith Test.
So, rather than screaming at all of us to “read the Constitution”, talk radio conservatives and their followers would do well to research the case law and trajectory of Free Exercise jurisprudence before launching into their sermons. They would certainly look less foolish if they did so.