We have written several posts about the lawsuits by dozens of Catholic institutions against the federal government that seek to invalidate the HHS mandate requiring them to violate their religious precepts by providing employees with contraceptive and certain abortion services. It strikes me as obvious that the HHS mandate violates the free exercise clause of the First Amendment, but this is not an area in which I am an expert. So I did a little research to find out whether the country’s pre-eminent expert on the religion clauses of the First Amendment, Michael McConnell, had written anything on the subject. Michael is a law professor at Stanford and formerly served on the 10th Circuit Court of Appeals. I can’t find that he has written anything on the mandate that is available on the web, but on March 22, he participated in a panel on “Religious Freedom and Healthcare Reform,” sponsored by the Religious Freedom Project at Georgetown University’s Berkley Center. His comments were summarized in some detail here. McConnell argues that the mandate violates the Religious Freedom Restoration Act as well as the First Amendment:
Michael McConnell, a former federal judge and current law professor at Stanford University Law School, explained that at its core, the debate over the mandate is a question of religious freedom.
“I do not share the Church’s theology with respect to contraception,” said McConnell, who is not Catholic.
Yet he explained that the real issue in this case is not contraception, but the government’s “unprecedented decision” to require American individuals and institutions to act in a way that violates their religious beliefs.
In addition to Constitutional protections under the First Amendment, there is also support for religious freedom in statutory law, McConnell said.
He explained that the Religious Freedom Restoration Act of 1993 makes it clear that the federal government may not “substantially burden” the exercise of religion unless it is furthering a “compelling government interest” and employing the “least restrictive means” of doing so.
In this case, he said, it is “rather obvious” that the mandate imposes a substantial burden on the free exercise of religion by requiring religious individuals and organizations to participate in something that they consider gravely immoral.
Furthermore, in granting an exemption at all, however narrow, the administration was acknowledging that “this would be a burden” on the free exercise of religious groups that find it objectionable, he said.
He added that the mandate would impose a substantial burden even with the administration’s promised accommodation, which he said is “no difference in substance whatsoever” than the original regulation.
Turning to the standard for a “compelling government interest,” McConnell explained that the federal government issued the mandate because it believes that contraception coverage is important and wants to place the cost of covering it on employers.
This is “not a compelling interest at all,” he said.
He noted that multiple states have contraception mandates in place, but none of them implement them in the same sweeping way with such a narrow exemption as the federal mandate does.
If it were a compelling government interest, the regulations would not have included any exemption at all, he explained.
Finally, McConnell said, the mandate is not the “least restrictive means” of carrying out the government’s goal.
The administration could achieve its objective in another way, such as expanding Title X funding of contraception, without forcing religious employers to violate their consciences, he observed.
Because it fails to meet the standards set out for religious freedom cases, the mandate violates the Religious Freedom Restoration Act and should not be allowed to stand, he said.
Here is a video of McConnell’s remarks. I think the power of his arguments, while couched in somewhat technical terms, will be obvious to pretty much everyone:
It is unfortunate that Professor McConnell is not a justice of the Supreme Court. Some observers think that he would be on the Court today if he had not authored an op-ed in the Wall Street Journal in 1998 titled, “Roe v. Wade at 25: Still Illegitimate.” But sometimes truth has to come before ambition. Michael has been known to check in on Power Line from time to time, so if he wants to offer any additional observations on the lawsuits, we will be happy to pass them on.