There's An Elephant In The Room?

Ross Douthat's column today sounds a familiar theme to regular readers of this blog:

The words “freedom of belief” do not appear in the First Amendment. Nor do the words “freedom of worship.” Instead, the Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.

It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.

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You can see this confusion at work in the Obama White House’s own Department of Health and Human Services, which created a religious exemption to its mandate requiring employers to pay for contraception, sterilization and the days-after pill that covers only churches, and treats religious hospitals, schools and charities as purely secular operations. The defenders of the H.H.S. mandate note that it protects freedom of worship, which indeed it does. But a genuine free exercise of religion, not so much.

Now, without explicitly saying so, Douthat is essentially claiming that the HHS exemption is too narrow to comport with the First Amendment, that it is,in short, unconstitutional. Would it surprise you, gentle reader, to learn that Catholic Charities litigated and lost this exact claim in New York State courts, in a decision which the U.S. Supreme Court declined to review? And that Catholic Charities also challenged a similar contraceptive mandate in the California courts, and lost, too? And that both decisions relied heavily on Employment Division v. Smith, the Justice Scalia opinion which emphatically reaffirmed, with a myriad of citations dating back to the Victorian Age through the 1980s, that "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate"? Smith remains the leading case in this area, and under it, the courts both state and federal have routinely dismissed First Amendment arguments identical to those made by Douthat. As I have previously pointed out, the US Conference of Catholic Bishops in its materials claiming that religious freedom compels an exemption from the requirement that employers provide contraceptive coverage likewise implied that the Administration was violating the First Amendment, citing a case with no applicability, and studiously avoiding Smith, or the cases dating back to 1879 which it followed and applied.

So when you read these First Amendment claims that religious freedom must allow for such exemptions, ask yourself: What about the elephant in the room, and why won't these First Amendment mavens-come-lately address the actual case law?