Justice Scalia on religious freedom

How did progressives cede the religious freedom argument in the contraception debate? The right’s attack on the president’s contraception compromise is constitutionally ignorant, historically inaccurate and philosophically convoluted. 

Does the contraception compromise violate the free exercise of religion guaranteed by the First Amendment? The right says yes, but every iota of this nation’s constitutional jurisprudence says nonsense.


As the Supreme Court majority wrote in 1990, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law … On the contrary, the record of more than a century of free exercise jurisprudence contradicts that proposition.” 

Before someone complains about left-wing justices ignoring constitutional norms and legislating from the bench, note that the author of that opinion, and those words, was none other than Antonin Scalia. Enough said.

In bolstering the majority view, Scalia cites the Reynolds case from 1879, which held that “Laws … cannot interfere with mere religious beliefs and opinions, they may [interfere] with practices … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious beliefs superior to the law of the land.” Though government cannot outlaw beliefs, it can limit practices in some cases. Citizens may not ignore those laws because religious doctrine is not above the law of the land.

Rep. Paul RyanPaul Davis RyanFormer Sen. Bob Dole dies at 98 No time for the timid: The dual threats of progressives and Trump Juan Williams: Pelosi shows her power MORE (R-Wis.) commits the sin the court forbids, arguing on “Meet the Press,” “the charities and the hospitals, they don’t enforce doctrine, they don’t interpret it. It’s the bishops [who do so] and they’re very clear in saying this is a violation of our constitutional rights.”

Ryan suggests the bishops, not the justices, should be the arbiters of the Constitution. In practice, the court has repeatedly required religious groups to violate tenets of their faith to comply with laws passed by Congress and legislatures — and even to comply with bureaucratic regulations. As Scalia noted, courts have required individuals and institutions to transgress their religious beliefs by undertaking military service, banning polygamy, not wearing yarmulkes in the military, paying into government programs like Social Security, requiring vaccinations and paying minimum wage, among many others.

The courts have done so because, in then-Chief Justice Warren Burger’s words, “The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” Burger’s definition of “overriding government interest” included programs that were national in scope and served a positive public purpose — and by any standard, the government has an interest in ensuring that women receive preventive healthcare services.

While the justices have disagreed about the precise circumstances in which religious behaviors can be constitutionally overruled, Burger’s words reflect the narrowest construction. 

The philosophical tests for the right are in the cases: Mormonism originally required polygamy as a religious duty, so by outlawing it, government prevented Mormons from practicing their religion. By the Supreme Court, that was not a violation of religious freedom. 

How would the right feel about Quakers, who, recognizing a religious prohibition against supporting war, deducted from their tax payments the percentage funding wars? A philosophically consistent opponent of the president’s compromise would be forced to see that as a legitimate free exercise of religion. The Supreme Court and most Americans would say no.

And while most Americans surely support the First Amendment, by 2-to-1 they also believe that religious employers should be required to cover contraception. 

The religious freedom argument is nothing more than a constitutional canard for those who oppose contraception.

Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the Majority Leader of the Senate and the Democratic Whip in the House.