During oral arguments Tuesday about the validity of Obamacare’s birth control mandate, Justice Elena Kagan cleverly echoed Justice Antonin Scalia’s past warning that religious-based exceptions to neutral laws could lead to “anarchy.”
“Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard,” she told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. “So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.”
Kagan’s remarks might sound familiar to the legally-trained ear. In a 1990 majority opinion in Employment Division v. Smith, Scalia alluded to the same examples of what might happen if religious entities are permitted to claim exemptions from generally applicable laws. He warned that “[a]ny society adopting such a system would be courting anarchy.”
“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” Scalia wrote in the 6-3 opinion, “ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”
Indeed, Clement picked up on the reference.
“If you look at that parade of horribles — Social Security, minimum wage, discrimination laws, compelled vaccination — every item on that list was included in Justice Scalia’s opinion for the Court in Smith,” he said.
Kagan also echoed Scalia’s argument in Smith that judges are not qualified to evaluate the “centrality” of beliefs to a faith, or the “validity” of interpretations brought forth by individuals seeking exemptions from the law.
“You cannot test the centrality of a belief to a religion, you cannot test the sincerity of religion,” she said. “I think a court would be, you know — their hands would be bound when faced with all these challenges if your standard applies.”
The case in Smith was brought by two men who lost their jobs for using peyote, which they said was part of a Native American ritual, and were subsequently denied unemployment benefits by Oregon.
If Scalia had the final word, the owners of Hobby Lobby and Conestoga Wood probably wouldn’t have had much of a case against the birth control rule. But Congress responded to Scalia’s opinion by passing the Religious Freedom Restoration Act in 1993, which sets strict scrutiny standards for any law that substantially burdens a person’s exercise of religion. That’s the law that endangers the contraceptive mandate — and it’s the basis under which Scalia appeared to lean against the government’s position during Tuesday’s oral arguments.
Justice Kagan has some massive flaws in Her logic.
First, the idea the “entire U.S. Code” would be subject to the compelling interest test was a decision the congress made in both 1993, when RFRA passed the House unanimously and the senate 97-3, and 2000 when the congress unanimously strengthened the law and is explicitly contained within the text of RFRA. Cf., 42 USC 2000bb-3.
Justice Scalia’s Smith quote was a valid concern before RFRA was adopted but no longer is, due to the “least restrictive means” test which was not available for consideration in that case. As such, it has no relevance in Justice Kagan’s consideration of this case.
Justice Kagan also errs substantially when She claims “You cannot test the sincerity of religion” is part of the Objector’s argument. At no point has Any of the Objectors in these cases made such a claim, Mr. Clement did not make such a claim, and the text of RFRA itself would not support such a claim.
Given the apparent ill-preparedness of Her Honor, perhaps She was not the best choice for the President to nominate?
The problem is in their interpretation of the law. In no sense should it apply to the rights or women to used legal birth control. Not their CEO/prophet’s opinion, but theirs. The part of the test in RFRA that this FAILS completely, is in the simple proposition that the employer’s religion should decide what treatment is the “right” one. The right is the employee’s. There is no right to a tax exemption for your particular principles. Quakers pay the same income tax as anyone else, even though they are conscientious objectors. They are not doctors. What they are refusing to pay for is only an “abortifacient” if you take a very conservative view of when the “personhood” of the fused cell from the first minutes of interaction. Well, if you go completely conservative, you couldn’t have any contraception. Here the federal government has done its job, consulted with the doctors as to what should be offered to give all women the choice. It is Hobby Lobby that refuses to, and the musical fascists on the court say, absolutely, have a tax break – thus, making the court come down on the side of a particular religious belief. Alito said, no, this will not apply to Scientologists, so they must pay for mental treatment. “Establishment clause.” Can’t do it. You can, as a woman, go off birth control, only use herbs from South America, or use what 85% of the rest of America uses: the list of drugs on the government’s list. The idea that a billionaire can decide what’s available based on a frankly, subjective belief, and apply that as a ‘principle’ to women of other religions, and other consciousnesses, is corrosive to the first amendment, not a case of “religious liberty.”