Losing The Battle They Lost 22 Years Ago

Thinking to myself this weekend about President Obama's brilliant move on birth control coverage , it's occurred to me that the Supreme Court absolutely must have dealt with the question of religious liberties versus federal law before now, otherwise we would have heard this argument sooner.

On Twitter, Matt Yglesias was one step ahead of me and noted this 1990 Supreme Court decision on just how far a person's First Amendment religious liberties go when it comes to resisting laws they don't agree with morally.  The case was Employment Division, Department of Human Resources of Oregon v. Smith, where two Oregon men were fired and denied unemployment benefits for using peyote.

The two men claimed that the law against peyote use violated their religious liberties because they consumed it as part of a Native American religious ceremony.  The lower court in Oregon agreed and reversed the decision that denied them unemployment benefits.  The State of Oregon appealed the case up to the Supreme Court.  The 6-3 decision by the Supreme Court held the following (emphasis mine):

Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. 

Now, that's a huge thing right there.  In 1990, the Supreme Court created precedent by saying that unless the express purpose of a law is to curtail religious freedoms, that the law does not violate the First Amendment.  If you feel it does, too bad.  The decision continues:

Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U. S. 586, 310 U. S. 594-595 (1940):

"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

Pretty straightforward if you ask me.  For the Catholic Church to be right about the President's rules on birth control coverage violating the First Amendment, all they have to do is prove that the law was specifically designed to violate the Catholic Church's prohibition on birth control.   Good luck with that, guys.

Oh and I know what the next argument will be:  "That decision is irrelevant, it was obviously written by a secular, Christian-hating liberal!"

It was written by Justice Antonin Scalia.

Game, set, match, America's women and President Obama.  Thanks for playing.  TPM puts up this article:

Not satisfied with President Obama’s new religious accommodation, Republicans will move forward with legislation that permits any employer to deny contraception coverage in their health insurance plans, Senate Minority Leader Mitch McConnell (R-KY) said Sunday.

“If we end up having to try to overcome the President’s opposition by legislation, of course I’d be happy to support it, and intend to support it,” McConnell said. “We’ll be voting on that in the Senate and you can anticipate that that would happen as soon as possible.”

For the record, I called the GOP using this Blount Amendment as part of the payroll tax hostage package on Saturday.  Just sayin'.