Religion clauses

by Jeremy Leaming

Catholic bishops and right-wing pundits and politicians are still slathering over the Obama administration’s contraception rule that requires health insurance policies to provide free contraceptives for employees at religious affiliated universities, hospitals and charities.

On Friday after announcing a tweak to the rule – requiring insurance providers, not the religiously affiliated institutions to pay for the contraceptives – the United States Conference of Catholic Bishops issued a statement blasting the change as “unacceptable,” and continued to tar the policy as a violation of their religious liberty rights. (The religious liberties violation is a canard. The policy applies generally to all groups, secular and religious. As ACSblog noted last week there are numerous laws of general applicability that impact religious practice without amounting to a violation of the First Amendment’s free exercise clause. The contraception policy from the White House already exempts houses of worship, allowing them to provide inadequate health care coverage to their employees if they wish.)

Nonetheless, Religious Right outfits, and not surprisingly many politicians, aren’t letting go of this one.

For example, U.S. Rep. Connie Mack (R-Fla.) dished up hyperbole in a discussion of the Obama administration’s health care policy on CNN. Video of the segment is below.

Rep. Mack claimed the flare-up over the contraception rule proved that the Obama “administration doesn’t believe that the Constitution and that personal freedoms and liberties matter. And it is an assault on our freedoms. So whether it is Obamacare forcing people to buy something they may not want to buy, and now this reaching into the church, and forcing the church to do something that is against its own tenants, this shows an arrogance.”

“He’s a lawyer,” Mack continued, “and he is showing that the words of the Constitution don’t matter to him.”

Regarding the administration’s landmark health care reform law, the Affordable Care Act, numerous constitutional law scholars have argued that the law’s minimum coverage provision, which starting in 2014 will require people who can afford it to obtain minimum health insurance coverage or pay a penalty, is a lawful regulation either under Congress’s power to regulate commerce or its taxing power.

For more on the constitutionality of the Affordable Care Act’s minimum coverage provision see this ACS Issue Brief by the National Senior Citizens Law Center’s Simon Lazarus.

By Leslie C. Griffin, Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center

The EEOC and Cheryl Perich lost 9-0 in the Supreme Court when the Court dismissed schoolteacher Perich’s Americans with Disabilities Act [ADA] lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School. The Court for the first time approved the ministerial exception, a rule that the state and lower federal courts had used for forty years to dismiss lawsuits by “ministers” against their religious employers, including churches, elementary and secondary schools, universities and hospitals.

One of the arguments in the amicus brief I filed on Perich’s behalf concerned the Court’s leading free exercise precedent, Employment Division v. Smith. In Smith, the Court held that two Native American drug counselors who used peyote in a religious ritual could be denied unemployment compensation benefits because the criminal laws prohibit drug use. The most famous language from Smith is that all citizens are subject to “neutral laws of general applicability” because to permit exceptions from the criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Many supporters of religious freedom detested Smith for its incursion on free exercise. In other words, they believed that religious freedom should trump the law. In contrast, I agreed with Smith’s holding that religious belief should not be superior to the law of the land. I defended Smith because I think our constitutional system depends on a shared system of law. To exempt religious citizens from the laws undermines the rule of law. For the ministerial exception, I argued that, just as Alfred Smith had to obey neutral drug laws of general applicability, so too did Hosanna-Tabor Evangelical Lutheran Church and School and other religious employers have to obey the antidiscrimination laws.

Chief Justice John Roberts’ opinion for a unanimous Court squarely rejected that argument. Although the Chief Justice conceded that the ADA is a neutral law of general applicability, which presumably could be applied to Hosanna-Tabor under Smith, he quickly distinguished Hosanna-Tabor from Smith:

a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

This is a strange argument in the context of the ministerial exception. In terms of religious freedom, the ingestion of peyote is a profound religious ritual with a long American history predating the Constitution. In sharp contrast, the ministerial exception involves cases where employees allege disabilities discrimination, retaliation, pregnancy discrimination, sexual harassment, hostile work environment, unequal pay, race discrimination, gender discrimination, and other civil rights violations. Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay. Other ministers sue for disabilities discrimination. Many of these “ministers” have been schoolteachers or non-ordained personnel who did not realize they were “ministers” until their lawsuits were dismissed.