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Commentary: Catholic Church argument doesn't hold up under Justice Scalia's reasoning

This article first appeared in the St. Louis Beacon, Feb. 24, 2012 - In its claim that religious freedom is under assault if the federal government were to require employer-provided health insurance plans to cover birth control, the Catholic Church is making a Free Exercise Clause argument. Found in the First Amendment to the U.S. Constitution the Free Exercise Clause says “Congress shall make no law ... prohibiting the free exercise" of religion.

The Catholic Church reads the clause to mean that the federal government cannot force a religious institution, including a religious-affiliated institution, to provide something that would make it easier for others to do something that the religious institution would deem to be sinful.

Therefore, since the Catholic Church believes that using birth control is engaging in immoral conduct, the church argues it would violate the Free Exercise Clause for the federal government to force a Catholic university or hospital, for example, to cover birth control under its employee health insurance plan. By mandating a Catholic university or hospital to provide such coverage it would make it easier for its employees, if they elected to do so, to obtain birth control devices, drugs or procedures and thus, the Catholic Church has argued, such a mandate would violate the right to free exercise of religion.

However, a majority of the U.S. Supreme Court has rejected this argument. The court did so in Employment Division v. Smith. The majority opinion in Smith was written by Justice Antonin Scalia, a Catholic. In Smith, Justice Scalia, writing for the majority, held that government, without running afoul of the Free Exercise Clause, could forbid the use of peyote at a worship service of the Native American Church so long as it did so under a generally applicable law.

In Smith, the Native American Church had argued that the government prohibition on their sacramental use of peyote was an assault on religious liberty and a violation of the church’s right to free exercise of religion. Justice Scalia rejected the church’s argument by reading narrowly the Free Exercise Clause to find that “the right of free exercise does not relieve religious institutions of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that the religious institution prescribes (or proscribes).”

Accordingly, Justice Scalia did not find that the Supreme Court’s Free Exercise jurisprudence required the government to give an exemption to an individual or institution on grounds of religious conscience from compliance with an otherwise valid law prohibiting or mandating conduct that the government was free to regulate.

Logically it follows that if the Supreme Court has held that Free Exercise Clause does not give the Native American Church for reasons of religious conviction the right not to comply with a law that otherwise the government can enact, then the same holds true for the Catholic Church. The Church likewise cannot successfully claim a constitutional entitlement to a similar kind of exemption.

Justice Scalia wrote for a bare majority. Four justices (Blackmun, Marshall, Brennan and O’Connor) disagreed with Justice Scalia’s narrow reading of the Free Exercise Clause. They did not read the Free Exercise Clause, as Justice Scalia had, as distinguishing between laws that are generally applicable and laws that target particular religious practices. Instead, they read the clause more broadly to require the government to grant an exemption based on a sincerely held religious conviction to any individual or institution from any law unless the government had an overriding compelling interest that it could not advance if it was forced to grant the exemption.

Under the dissenting justices' broader understanding of the First Amendment protection of religious liberty the Catholic Church’s argument might well be a winner. But under Justice Scalia’s (and the majorities') more narrow view, the Catholic Church’s Free Exercise Clause argument appears to be a loser.

Alan Howard is a professor of Law at Saint Louis University School of Law.