I’ve received the following request for a correction from
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Eric Rassbach, the national litigation director for the Becket Fund, regarding yesterday’s post on HHS’ contraceptive mandate.
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I wanted to point out an error in your post regarding the
HHS mandate litigation and request a correction: the Supreme Court would not
have to “reverse” itself with respect to RFRA were it to rule in
favor of our clients. Although in Boerne v. Flores RFRA was declared
unconstitutional as applied to the states, it still remains in force with
respect to the federal government. For example, almost 6 years ago the Supreme
Court upheld a RFRA claim against the federal government in Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal
(we filed a brief in support of UDV in the appeal). The same is true of Smith–it also provides for strict scrutiny if, for example a law contains
categorical or individualized exceptions; the HHS mandates contain both. (See,
e.g., Fraternal Order of Police v. City of Newark.
(Becket Fund argued for itself, the ACLU and ADL)).You are probably not surprised that I also
disagree with other parts of your post, but this was an error I thought I ought
to bring to your attention
As a non-lawyer, I’m always happy to be corrected by those who know better, and in this case I admit I could have been more precise. Rassbach is right to point out that the Supreme Court wouldn’t have to reverse itself with respect to RFRA were it to rule in favor of Belmont Abbey College. RFRA remains a valid federal statute that the Court has used to rule on cases such as Gonzales. But where the Court would not have to reverse itself on RFRA, it would with respect to Employment Division v. Smith, if it agreed to the suit’s claim that the HHS mandate violated the school’s religious freedom “as secured by the First Amendment.” With respect to Fraternal Order, that gets deep into the jurisprudential weeds, and includes disagreements from other federal appeals courts. Let the lawyers sort that out.
My principal concern was to dispute the claim by various evangelical and
Orthodox Jewish leaders that “the Federal government is obligated by
the First
Amendment to accommodate the religious convictions of faith-based
organizations of all kinds, Catholic and non-Catholic.” Nor does
Rassbach contend I’m wrong. Under current Supreme Court jurisprudence,
the federal government is not obligated to accommodate the religious
convictions of faith-based organizations.
Be all this as it may, the fact is that, thanks to Smith and its progeny, we now have two different constitutional standards for protecting religious freedom in the U.S.–a high, strict scrutiny standard for the feds and a low, no-contesting-a-neutral-law standard for the states. I think this is a rotten state of affairs and I strongly suspect Becket’s lawyers would agree that Smith et al. ought to be deep-sixed. While it does not serve their clients’ cases to instruct the courts to that effect, it would be a good thing if they would make it clear to fellow conservatives–yo, Newt! Yo, USCCB!–that the biggest contemporary threat to religious freedom has come not from the ACLU and the Obama Administration but from Justice Scalia and his friends on the Court.
