Free Exercise 101

As a Catholic who happens to be a legal scholar, I believe (and argue) that the HHS rule and subsequent so-called “compromise” violate Catholics’ free exercise rights and possibly their free speech rights as well. As a legal scholar who happens to be Catholic, I’m attempting to understand the precedents and legal arguments to the contrary.

            First Amendment law and history are way too complicated for me to give a complete background here, even were I so inclined and even if I had the time (which I do not). But here is a sketch of some interesting ideas and cases related to free exercise.

            The first thing to note is the text of the First Amendment’s religion clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both the concepts and the wording are based on the Founders’ study of history, including sources ranging from Calvin to the Antifederalists, as you can see here. But for our purpose, note that textually we’re talking not about “freedom of worship” (which, like “separation of church and state” is a left-wing mantra that isn’t a part of the Constitution) but “free exercise” of “religion”—rather broader than mere worship, wouldn’t you agree?

            Justice William J. Brennan thought so, and his civil libertarian credentials are unimpeachable. In Sherbert v. Verner (1963), Adell Sherbert’s employer tried to make her work on Saturday. Problem: Sherbert was a Seventh-Day Adventist who couldn’t do that without violating her conscience. Her employer fired her and she sought unemployment compensation, but the state denied it and she sued. The Supremes held 7-2 that the denial violated her free exercise rights. Here’s what Brennan said: “To condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”

            “So what’s the problem?” you ask. There, Sherbert had a choice: violate her conscience or forego unemployment. Here, Catholics have no choice: the rule forces us to violate our consciences. A fortiori, if Sherbert won, shouldn’t we?

            Ahh, not so fast. That more conservative Rehnquist court, which liberals loved decrying, greatly restricted the Sherbert rule in Employment Division v. Smith (1990). In that case, Alfred Smith wanted to use peyote—and had used it—as part of his religious practices, since he was a member of the Native American Church. The Indian peoples have been using peyote for religious purposes since long before Columbus ever showed up, but hey, now the white man is in charge, and he’s said that peyote use is a crime. So, like any good, red-blooded—er, red-skinned—American citizen, Smith sued.

            In the Supreme Court, that horrible Justice Scalia, whom liberals love to hate, delivered an opinion that they currently love (ideology, like politics, makes for strange bedfellows). In siding with Oregon against Smith, he wrote the following:

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. … As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted)." … Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

            My friends, this is just exactly what the Left and the Obama administration what to hear right now. The problem? First, the person who said it was Scalia, one of their great demons. Second, he relied heavily—as you can see—on Gobitis, which is a case that the Supremes had overruled almost a half-century earlier! (It was a case in which Jehovah’s Witnesses were forced by the government to salute the American flag in violation of their consciences.) Can you say “hypocritical?” Nevertheless, the Smith case is still good law, subject to an important exception.

            That exception is RFRA, i.e., the Religious Freedom Restoration Act, by which Congress attempted in 1993 to overturn Smith and restore the Sherbert rule. The Supremes shot down this effort—to a degree—in City of Boerne v. Flores (1997). But here’s the kicker: the Court’s invalidation of RFRA only extended to situations in which RFRA applied to state actions. (In legalese, Congress can enforce federal constitutional provisions against the states when those provisions are incorporated into the Fourteenth Amendment, but Congress can’t expand or redefine those provisions.) But in the 2006 case of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—another case of liturgical hallucinogenic use, like Smith—the Court revealed that RFRA is still good law vis-à-vis federal laws, such as Obamacare. In the Gonzales case, the Supremes allowed the use of hallucinogenic tea, since RFRA had effectively overruled the Smith rationale and restored the Sherbert rule. Thus, it appears that the Sherbert rule still applies in the HHS case. Of course, Gonzales dealt with “worship,” and the Court may find a similarly narrow exclusion in the HHS rule case, which would be bad news for the Church. But the good news is that Sherbert itself clearly wasn’t about “worship,” so if RFRA really has restored the Sherbert rule, then the Church should win. And the only way HHS can win is by conceding liberal hypocrisy in relying on a Scalia opinion that relies on an overruled case that coerced conformity (i.e., forced dissenters to salute the American flag—the same flag that liberals like to burn.)

            So there you have it. While the law can be made to say anything, as the Critical Legal Studies lefties noted, if we look at it in principled terms, Obama and HHS should lose.