Now They Like the Warren Court...

So, I think I finally have a clue as to why I'm lacking in sympathy for the conservatives attacking the Obama Administration for its proposed rule regarding contraception coverage on religious freedom grounds. It is, as usual, the hypocrisy that rubs the wrong way. Let me explain. In 1879, the Supreme Court decided Reynolds v. United States, in which it declined to exempt Mormons from the generally applicable federal criminal statutes prohibiting bigamy in territories of the United States. As the Court explained:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? 167*167 To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The Court reaffirmed the rule of Reynolds in Davis v. Beason. The general principle of Reynolds and Davis remained good law, until, in 1963, Justice William J. Brennan writing for a 7-2 majority of the Warren Court, in Sherbert v. Verner, found that a state unemployment compensation statute was construed by the state courts as disqualifying workers from receiving benefits if they refused to work on Saturdays, the Sabbath of her faith. The Court found that by advantaging mainline Christian faiths over other religions, and found that the state must prove that "some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right." The Court reaffirmed Reynolds, based on the criminal nature of the proscription (and thus the strong social interest in prevented bigamy vis a vis the general populace), and distinguished it (and Davis) from the case at hand by the fact that the exemption was effectively presumed and thus available to majority sabbath servers. In the Burger Court Era, the Court revisited the compelling state interest test in the religion context in Wisconsin v. Yoder, applying its principle to allow the Amish to homeschool their children.

However, in 1992, in Employment Division v. Smith, the Court, in an opinion by Justice Scalia, effectively reduced Sherbert and its progeny to historical artifacts, finding that "[t[he right of free exercise does not relieve an individual 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 his religion prescribes (or proscribes)." In particular, the Court noted, the Sherbert rule had never been applied to taxes or other financial assessments. The Court distinguished Sherbert and Yoder,on the grounds that:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at 304, 310 U. S. 307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

In short, Justice Scalia, joined by Chief Justice Rehnquist and Justices White, Stevens and Kennedy, effectively eliminated a Warren Court precedent which had created (according to the myriad decisions cited by the Court in Smith ) a limited exemption from neutral generally applicable laws for small-scale, substantial infringements on religious expression, such as the sacramental use of peyote involved in that case. (Marci Hamilton, in God vs the Gavel documents the narrow place Sherbert and its progeny had in the jurisprudence, so I'm not relying on Scalia alone here.)

So, here's the rub: The Right is complaining that Barack Obama is not following the effectively overruled Warren Court precedent, but is instead contouring his administration's policies to the analysis of Antonin Scalia and the conservative Rehnquist Court.

(As to RFRA, that's another post for another day; in very short, I don't believe it's violated because of the weight of the interest in standardizing health care, the accommodations made to ecclesial bodies and affiliated institutions prevent a "substantial" burden on religion, in view of the affiliated entities' role in interstate commerce and provision of services to the general public and employment of those beyond sectarian confines.)

(Oh, and Hamilton's argument for a narrow reading of Sherbert is, in my opinion, convincing, or religious exemptions could derail neutral, generally applicable law almost in toto.)