The first claim in the pending complaints is RFRA, which of course
completely avoids the Smith problem. The free exercise count alleges that
there are both statutory and administrative exceptions that affect tens of
millions of Americans who will get no coverage, or less than full coverage,
from their employers, so that the law is not neutral and generally
applicable. I have not looked at any of these provisions. But the employers
who are permitted to provide less than full coverage seems the most powerful
example here. These exceptions go not only to general applicability, but
also to the compelling interest argument under both RFRA and the Free
Exercise Clause
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
Sent: Saturday, February 11, 2012 12:32 AM
To: religionlaw@lists.ucla.edu
Subject: The contraception mandate under Empoyment Division v Smith
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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