Douthat on the New HHS Regulations

Ross Douthat has an interesting piece in the Times today about the Obama Administration’s decision to require religiously-affiliated universities and hospitals to cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, in employees’ health care plans. An exemption applies to religious institutions that primarily serve members of their own faith, rather than the public at large – parish churches, for example. Douthat takes the traditional libertarian line: even if one disagrees with religious objections to contraception, such that one would oppose government’s attempt to discourage their use, one might wish to allow private voluntary associations, like churches, to conduct themselves according to values that government does not share. Otherwise, by eliminating the state’s competition, one risks creating a despotic government that ultimately will trample on the liberties of the people. Douthat also points out the perverse incentives the proposed regs create. If a religiously-affiliated institution believes that conscience requires that it not cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, for its employees, the institution must limit its charitable work to co-religionists. Not exactly encouraging Good Samaritans.

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

CLR Forum readers will know that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application — where a system of individualized assessments with respect to exemption from the law has been adopted — then the law is again subject to strict scrutiny.  I’ve looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out…a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case reported by my colleague, Mark, just below, and just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school’s “no referral to other counselors” policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see Mark’s item below.  You might wonder just how powerful the individualized assessment exception is…you will have to wait for my book to see just how much!  For the third exception…follow the jump!

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