The other day I wrote about Obama’s sleight of hand trick in which he said religious institutions would not have to cover the cost of contraceptives under ObamaCare but their insurance companies would — a distinction without a difference.
In that blog I quoted conservative icon Justice Antonin Scalia in a 1990 ruling that said religions could not skirt the law under the guise of the Free Exercise Clause of the First Amendment. To which I argued that the law needed to address a compelling interest to in the first place.
I forgot that the decision, Employment Division v. Smith, prompted Congress to pass the Religious Freedom Restoration Act three years later. That law, as a column in The Wall Street Journal today reminds me, says a federal law may overstep the Free Exercise Clause only if there is “a compelling governmental interest” and it is applied in “the least restrictive means” of accomplishing that interest.
As I have heard over and over in countless news stories and opinion pieces arguing in support of Obama’s mandate, 99 percent of American women use contraceptives at some time in their lives. So if 99 percent already have access, where is the compelling need to require all health insurance companies to provide it for free? Might there be a less restrictive means of doing so?
You could hand it out on street corners and it probably would be less expensive than the insurance mandate and stamp on no one’s religious beliefs and exercise thereof.
The WSJ op-ed by David Rivkin Jr. and Edward Whelan concludes that the whole thing is really about politics. Isn’t everything Obama does just about politics and his re-election?
“In an effort to rally its base in the upcoming November election, the Obama administration seems more interested in punishing religiously based opposition to contraception and abortion than in marginally increasing access to contraception services. It is the combination of the political motive, together with the exclusion of so many employers from the mandate, that has profound constitutional implications. It transforms the mandate into a non-neutral and not generally applicable law that violates the First Amendment’s Free Exercise Clause.
“In short, the birth-control mandate violates both statutory law and the Constitution. The fact that the administration promulgated it so flippantly, without seriously engaging on these issues, underscores how little it cares about either.”