Not everyone in the Federal Government is as adverse to the First and Ninth Amendments as the Obama Administration. Our Local Federal District Court recently upheld the right of conscience as practiced by pharmacists in the state of Washington who refuse on such grounds to sell Plan B to customers.
I wrote about this a while back, and I’m glad to see that the District Court has upheld its prior ruling in this matter. The fact that ignoramuses and fascists were hardest hit is merely a bonus.
To the usual suspects who will want to caterwaul about how this is yet another tragedy in the non-existent “War on Women” that the Administration’s dutiful lapdogs in the media are ginning up to distract from the abysmal record that President Downgrade dares not run on, you need to read all links and comments to my previous piece before bleeding stupid all over my comment thread.
Taxes, Stupidity, and Death 
BiW, sorry to revisit this old post but I’d like your opinion on the following:
It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.
That was written in Employment Division, Department of Human Resources of Oregon v. Smith in an opinion by Antonin Scalia. The court’s finding was that religious practice does not trump the law of the land. More details here: http://religiousfreedom.lib.virginia.edu/court/oreg_v_smit.html
So please tell me how that ruling does NOT apply to the Catholic sponsored businesses in their execution of the Affordable Care Act.
1. Why did you choose to post the question here? It really has nothing to do with the state of Washington’s regulation.
2. I don’t have the time to pull up the entire decision and review it at the moment, but I’ll answer the your question later.
Ok, I just refreshed myself on it, and was reminded why most people shouldn’t play lawyer.
The short answer to your question is that the religious activity at issue is also a criminal one.
The two indians who used the peyote were asking the state to give them a benefit on the basis that their activity was a religious observance, and to ignore that the activity was also criminal in nature, which would mean that it is NOT subject to the kinds of balancing tests applied in other cases regarding religious practices. This is not the same thing as an organization being compelled to provide something that goes against their core teachings and practices.
What it boiled down to in this case was whether the state had legitimately prohibited certain kinds of religious observances without violating the First Amendment. Once it was determined on remand to the Oregon Supreme Court, the SCOTUS faced the circumstance in light of the fact that Oregon’s controlled substances law carved out no exception for sacremental use of peyote, which means that they could be fired from their jobs as drug counselors and denied unemployment benefits because they had committed misconduct.
There are two key distinctions you should understand. In Smith, there was an affirmative act by the plaintiffs, and that act was subject to a criminal prohibition.
With the HHS reg, the issue is about whether government can compel a religious organization to purchase/provide something that violates its core principles. It isn’t that much different than the individual mandate itself, except that because you are talking about religious principles, the First Amendment is implicated, and because you are talking about compelling them to act against their religious beliefs, the Right of Conscience, which would fall under the Ninth Amendment is implicated, instead of the Commerce Clause on Clownshoes and Steroids argument against the individual mandate.
The phrase you focus on IS interesting, but if you had read all nineteen pages of the decision, rather than just a squib, you would understand that there really are other factors, such as balancing tests, which are employed in making these decisions, and the only reason they were not utilized in this case is because of the criminal prohibition of the activity.
First thanks for taking the time to give an explanation. You’ve got a couple of posts related to the HHS ruling and I pretty much randomly picked this one to get your take on Smith.
OK I understand the absence of criminal acts in the HHS case, which makes it different from Smith. However, if we enact a regulation or law targeted to a broad audience that incidentally offends a religious entity, i.e. the reg/law was not targeted at that entity specifically, then how have we deliberately violated First Amendment protections? The cry of the right is that the HHS ruling is a war on religion. On the contrary it’s a general ruling targeted to a business sector and the church in this case, as I’ve said repeatedly, has chosen to engage in that business sector. By choosing to engage in that business sector, the church must abide by the laws governing that business sector. To say otherwise, puts the church above the law, which leads us back to Scalia’s opinion in Smith.
It would be great for someone to ask Scalia his opinion on the HHS situation and have him explain the difference in his reasoning between HHS and Smith.
Rutherford, I think you miss the other critical distinction.
In Smith the peyote-trippers were asking government to do something for them on the basis of their religious belief that it wouldn’t do for anyone else (because it didn’t create a specific religious exemption to a criminal statute)…that was the basis for the entire case.
With the HHS mandate, the government is attempting to force the Church to do something against its religious beliefs.(and apparently substituting its own interpretation of Catholic canon on the Church, if you believe Cardinal Dolan…which is an unmistakable violation of the Church’s First Amendment rights)
Put another way, in Smith, the parties claimed a government benefit that they were not otherwise entitled to because they claimed a religious exemption from a criminal act.
With the HHS, the government is trying to force a church to violate its core beliefs because it wants to make all employers responsible to provide contraception.
Seriously, there is no muddle, and no confusion.
I made a comment at R’s place after a quick read of the opinion. He was just looking for ammunition without wanting to think through the limitations of statutory balancing tests — and more critically, the factual distinctions between state mandated conduct versus denial of benefits.
Obviously the regs can accommodate the conscientious objections of the Catholic church. Obama’s handed out hundreds of exemptions to his big business sponsors already. R just struggles with the concept of Constitutional limitations on governmental authority in furtherance of a liberal agenda.
So he came to BiC’s place. . . 😆
Shame on you Rutherford. Sneaking around like this.
LOL … I swear on all that is holy (well maybe I oughta pick something else) that I was going to tell you to pop over here and see what BiW had to say. I wasn’t sneaking around.
On the contrary, to paraphrase Professor Kingsfield, I came in here thinking like a lawwwwwwwwya and I am leaving with a mind full of mush. 😦
Oh btw, giving credit where credit is due, I didn’t find that Scalia opinion myself. It was posted to my blog by GypsyKat. I should point her over here to read your rebuttal.
There’s your problem. Gypsy is a Chaz Bono proponent. That’s a bite hole in the rubber of life, old friend. You better double up. 🙂
OK, just out of curiosity, does that make you a Chaz Bono opponent? What would you suggest? That Chastity Bono live out the rest of her days miserable because she believes she is a man in a woman’s body? Does her gender reassignment really take that much skin off your nose?
On the contrary, to paraphrase Professor Kingsfield, I came in here thinking like a lawwwwwwwwya and I am leaving with a mind full of mush.
Don’t sweat it. Some people go all the way through law school without ever really learning that you can’t brief a 10+ page case based on a paragraph from the headnotes alone.
R just struggles with the concept of Constitutional limitations on governmental authority in furtherance of a liberal agenda.
So he came to BiC’s place. . .
Kind of like being anti-drug and making Charlie Sheen your very best friend.
I think you both miss the point. I didn’t come here expecting confirmation from BiW … I simply wanted to toss the Scalia quote into the mix and discuss why it would or wouldn’t apply to HHS.
I got what I came for.
I think you miss the point. Like kernel is not an ear, dicta (or “quote” as you out it) from a case cannot be confused with the embodiment of its holding, limitations, or precedential value in other contexts (as here). I say that because it’s obvious you’ve put too much stock in a “quote” from one case’s opinion on another subject in deciding that it addresses the constitutional limitations on the contraception issue.
Now you’ve asked for and received an off-the-cuff analysis. There’s certainly a lot more to the subject from a legal standpoint. You really ought to consider reading and considering the opinion yourself, as well as prior and subsequent decisions on the subject. You would unquestionably help you to see that your limited and one-sided view of what “ought to be” is little more than that.
Don’t work from platitudes and know that it’s the difficult cases that make bad law. 😉
Actually, I fully agree with you. One comment from a Justice taken out of context doesn’t hold up in an intellectually rigorous debate. If I had the time (or I was being graded 🙂 ) I’d pore through Smith and any other related documents to better educate myself.
As it stands, I trust that you and BiW have pointed out the differences that might make Smith inapplicable to HHS.
Still you’ve got to admit, that’s a f*cking great quote … ehhh sorry … dicta.
Don’t work from platitudes and know that it’s the difficult cases that make bad law.
Wow. That was a trip down memory lane. Along with “…which puts us in the unhappy land of facts and circumstances…”
As it stands, I trust that you and BiW have pointed out the differences that might make Smith inapplicable to HHS.
“might make”?
Well aside from the fact that the imposition upon religion is completely different in circumstance, nature, and character, I can certainly see why you’d hedge that bet. 😉
LOL …. damn I KNEW you’d pick up on that “might”. 🙂
Along with “…which puts us in the unhappy land of facts and circumstances…”
I hadn’t heard that one, but I’ve certainly vacationed there.
BiC, one of my favorites came from a Judge in a high-stakes will contest in a rural Georgia county.
The judge called us back in chambers and said he had made a decision on a contentious issue that concerned the admission of evidence of the wife’s spending habits over the course of their two-month marriage. The Judge (who shall remain nameless) leaned in, and in a hushed tone with a deep southern drawl said, “counselors, you know insurance studies show that in most households women control 85% of the spending . . . and 100% of the pussy. I’m going to let it in. . .”