None other than Justice Antonin Scalia himself wrote the majority opinion in what legal scholars say would be the relevant precedent: the 1990 Employment Division v. Smith. This case involved a man who had been fired for smoking peyote, which was against Oregon law. The man sued on the grounds that smoking peyote is part of his Native American religious practice. The court found that religious liberty is insufficient grounds for being exempt from generally applicable laws.
Scalia's opinion stated:
The court later created a "ministerial exception" that exempts religious organizations from certain anti-discrimination laws in its hiring ministers. Orthodox Jews would not be forced to hire women as rabbis; Catholics would not be forced to hire gay priests. But UCLA constitutional law professor Adam Winkler says this didn't change the precedent as it would apply to birth control. “I don’t think there’s any real argument” about that, he added.“To permit this 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.”
Obama might prevail in court -- but that is not the immediate concern. How effective as a political weapon is this? Can the Democrats reframe the issue and counter Republican demagoguery before it gets written in stone as evidence of Obama's "war on religious freedom?" Will the majority of American people see it for what it is?
I'm not so sure about that.
Ralph
The White House has announced a compromise on this issue which ensures access to insurancce covered contraception but shifts the requirement to insurance companies instead of employees that object.
ReplyDeleteGiven the political climate, this is probably a wise compromise. But I don't like it at all that it skirts confronting the real issue -- that is to what extent religious groups can dominate rules for the rest of us.