The Obama administration is under assault for requiring insurance companies to broaden coverage of women’s preventive health services to where insurers will have to cover certain contraception methods and procedures. Christian leaders and many other in the country have decried the requirement as impermissible and even unconstitutional. So, what’s the constitutionality of the President’s move?
The pertinent provision of the Constitution is the Constitution is the Free Exercise Clause of the First Amendment, which provides that “Congress shall make no law[…] prohibiting the free exercise [of religion].” Courts have made clear that a claimant’s right to religious free exercise is only protected when the claimant has a sincerely held religious belief and the government’s action is a substantial burden on the claimant’s ability to act on that belief. Accordingly, to be protected under the free exercise clause, a belief system must be (1) “sincerely held” and (2) “religious.” A claimant has the burden of proof as to both of these elements.
With respect to Christianity, I believe that it meets both requirements and can therefore make the threshold showing that it (and by “it” I mean its adherents) is entitled to free exercise.
The Supreme Court has said that free exercise embraces two concepts — freedom to believe and freedom to act; the first is absolute, but the second is not. For the Obama administration, the freedom to act is the problem they’re running into: namely, individuals are being forced to cover services they find unconscionable. But is this a constitutional problem?
The Supreme Court has stated that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law prescribes conduct that an individual’s religion disapproves of finds reprehensible or immoral. The reason for this is that the United States is a diverse nation which has people which adhere to almost every conceivable religious preference; as such, courts cannot strike down such neutral laws on the basis that they incidentally interfere with religious free exercise. In other words, when there is a law of general applicability which burdens religious free exercise, it need not be justified by a compelling governmental interest. However, a law which is not of general applicability must be justified by a compelling interest and must be narrowly tailored to advance that interest.
From the Obama administration’s perspective, they will undoubtedly argue that on its face their order is neutral and does not zero in on one segment of the population. Thus, despite it creating an “incidental burden” on religious free exercise, it need not be substantiated by a compelling governmental interest, and, therefore, is constitutional.
Based on recent developments, though, I feel there is a strong chance the administration will retreat a bit. It’s an election year after all.