Defining the rights of the religious in America

Two decades ago, Congress overwhelmingly approved and President Clinton enthusiastically signed the Religious Freedom Restoration Act. But now that the 1993 law is being used to challenge the Obama administration’s requirement that employer health plans include contraceptive services, some supporters of the law are having second thoughts, and several organizations want the Supreme Court to declare it unconstitutional. That would be a mistake.

The law was a response to a 1990 Supreme Court decision involving two Oregon men who had been denied unemployment benefits after they were fired for using the hallucinogenic drug peyote during a Native American religious rite. In his decision for the majority, Justice Antonin Scalia upheld the government’s right to deny the benefits on the grounds that a religious motivation doesn’t entitle a believer to disobey a generally applicable criminal law. Congress, in turn, passed the Religious Freedom Restoration Act, which says the government may “substantially burden a person’s exercise of religion” only if necessary to further a “compelling government interest” and only if the law in question is the “least restrictive means” of achieving that interest.

Next month the Supreme Court will hear arguments in two cases in which owners of for-profit businesses argue that the law allows them to disregard the contraceptive mandate because of their religious objections. We hope and expect that the court will reject their claim. The law refers to burdens on “a person’s exercise of religion,” not a corporation’s, and the burden must be substantial. Providing insurance coverage for a woman who uses it to obtain contraceptives no more implicates an employer in her decision than does the payment of her salary, which can also be spent on birth control. Finally, ensuring that women have access to preventive healthcare is clearly a compelling interest.

But we don’t think the law should be declared unconstitutional, as several organizations — including the Freedom From Religion Foundation — have argued. They claim that it is a “takeover of [the Supreme] Court’s power to interpret the Constitution” and amounts to an “establishment” of religion in violation of the 1st Amendment.

This goes too far. Congress is free to protect rights more comprehensively than the 1st Amendment does, whether it is religious freedom or the right of reporters to protect their confidential sources (the aim of a proposed federal shield law). The Religious Freedom Restoration Act is a balanced effort to protect religious liberty. Properly interpreted, it doesn’t require the court to weaken the contraceptive mandate.