I've been following the coverage of the mandate that religious organizations
provide free contraception through their insurance plans, regardless of
whether or not it forces them to violate the tenets of their faith.  Today's
announcement of an accomodation notwithstanding, ,though, I'm wondering what
the chances are that the courts would rule against the administration if the
lawsuits that have been filed go to trial.

 

It's my understanding that, in Employment Division v Smith, the Court
clearly said that a neutral law of general applicability isn't going to
violate the Free Exercise Clause.  From what I've read, the regulation in
question appears to be both neutral and of general applicability.  A strict
adherence to Smith would seem to weigh against the religious freedom claims,
which is the danger many have seen in Smith since the ruling first came out.

 

What is the sense here whether the Courts would adhere to Smith and uphold
the mandate, or would the Courts see it as an opportunity to revisit Smith?
I don't remember that there was the same national controversy over Smith
when it came out, but it seemed to me that, outside of legal and Native
American circles, most folks didn't worry about it because they didn't see
it as a ruling beyond peyote.  The contraceptive mandate has certainly
gotten the attention of a much larger segment of society, though.  I wonder
if the Court would see a case like this as an opportunity to restore what
was lost in Smith.

 

Brad Pardee

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