While it is certainly good news that the Little Sisters of the Poor won (for now) the right to be free from Obamacare’s so-called “contraception mandate,” one can make the case that the Sisters’ Wednesday victory should have been more sweeping.
In fact, not even the concurring opinion by Justice Samuel Alito (joined by Neil Gorsuch), which would have given a more conclusive victory to the Sisters, would completely satisfy religious-liberty near-absolutists such as I am. For an entirely salutary result, the Supreme Court would need either to reinterpret or at least partially overturn one of the few ill-advised decisions of the late Justice Antonin Scalia.
I would rather see the Little Sisters entirely vindicated not just on the basis of the statute at issue, the Religious Freedom Restoration Act, but on the basis of the First Amendment itself. Congress passed the RFRA statute in response to, and to work around, Scalia’s decision in Employment Division v. Smith. That decision involved some Native Americans’ assertion that their religion should make it allowable, under the First Amendment, for them to ingest peyote, a hallucinogen, despite a law and their employer’s proscription of it.
Without delving deeply into the Smith case, suffice it to say that, especially as interpreted by later decisions, Scalia’s opinion has stood as a significant limit against a broad reading of the First Amendment’s religious-liberty protections. Thus, in cases such as the Little Sisters one and the similar Hobby Lobby case from 2014, the employers were seeking relief not under the First Amendment, but under the RFRA. Statutory protections such as the RFRA’s are helpful but arguably less weighty or stable than protections embedded in the Constitution itself.
Let’s make things simple. Broadly speaking, four possible outcomes could govern the Little Sisters’ dilemma. Two liberal justices would have applied outcome one, which is that any religious-liberty considerations for the Sisters are not strong enough to exempt the group from the contraception/abortifacient mandate. That position lost, thank goodness.
The court majority applied possible outcome two, which is that the RFRA allows, but does not require, executive departments to grant the Sisters (and others groups like it) a faith-based exemption.
Alito and Gorsuch would have applied possible outcome three, which is that the RFRA not only allows but requires such an exemption. In sum, that’s what the Sisters asked for, so it would have given it a total victory in this case.
Possible outcome four, though, would be the ideal. It would say that not only does the RFRA require the Sisters to be granted the exemption, but that so does the First Amendment’s Free Exercise clause. If that had been the decision, then a boatload of restrictions on religious liberty still being contested under the RFRA would effectively be jettisoned, thus providing much broader protections for the free exercise of faith.
Again, to go that far would require that the Smith decision be directly challenged and overturned, at least in part. (Or that Scalia’s own distinctions be given greater weight than most subsequent jurisdiction has afforded them, so Smith’s effect would be reinterpreted rather than directly overturned.) The word is that, under different circumstances from the Little Sisters case, some highly respected legal minds are considering just such a challenge to Smith.
Consider this column, then, a plea for the challenge or challenges to be launched. Several other justices reached the same ultimate result against the peyote users that Scalia did, but without narrowing the reach of the First Amendment, the way Scalia’s decision has been interpreted to do. It’s worth revisiting those justices’ concurring opinions from 1990, to give expression of religion freer reign.
