I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

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