Birth control mandate a First Amendment violation? Not so fast.

The Senate will vote on Sen. Roy Blunt’s (R-MO) amendment to repeal the Health and Human Services “birth control mandate.”

The argument against the mandate, as Angry Black Readers by now are no doubt aware, is based on the idea that the mandate violates Constitutionally-guaranteed “religious liberty.” I can’t think of a better way to represent this argument than the way it was recently framed by Sarah Palin:

Truly, it is a war on our religious liberties and that violation of conscience that he would mandate that is un-American because it violates our First Amendment in our Constitution.

Breathtaking. Somewhat unrelated, but if someone with a background in semiotics could parse that quote for me, I’d be very appreciative.

Anyway, I’ve been browsing Supreme Court decisions* on religious liberty and the rule of law, and I thought some of these might be of interest. Interestingly, I found most of these in the citations Justice Antonin Scalia made while writing the majority opinion in Employment Division v. Smith:

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.

— Antonin Scalia, in the majority opinion in Employment Division v. Smith, 1990

Scalia cites opinions dating back to the 1800s. A brief ride on the time machine of relevant jurisprudence:

Not all burdens on religion are unconstitutional. … The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.

…

The design of the [social security] system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. “[W]idespread individual voluntary coverage under social security… would undermine the soundness of the social security program.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965). Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.

…

To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, … but there is a point at which accommodation would “radically restrict the operating latitude of the legislature.”

– From Chief Justice Warren Burger’s majority opinion in United States v. Lee (1982), which held that an Amish man’s religious beliefs did not exempt him from the obligation to pay social security taxes.

There are few, if any, governmental activities to which some person or group might not object on religious grounds.

– Judge Ben C. Duniway, Autenrieth v. Cullen, 418 F.2d 586 (1969)

This decision held that a group claiming religious opposition to the Vietnam war was still obligated to pay income taxes. The case was appealed to the Supreme Court, which denied certiorari.

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.

– Justice Frankfurter, Minersville School District Board of Education v. Gobitis, 1940

Accordingly, at the first session of the first Congress the amendment now under consideration [the First Amendment to the U.S. Constitution] was proposed with others by Mr. [James] Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. [Thomas] Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.” Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

- Chief Justice Morrison Waite, writing the Supreme Court’s opinion in Reynolds v. United States, which affirmed the government’s authority to outlaw polygamy. (1879) (Emphasis added)

Conservatives waiting on the Supreme Court to overturn “Obama’s Birth Control Mandate” should take care not to hold their breath.

Meanwhile, Democrats in the Senate are ready for a fight over Blunt’s amendment, which doesn’t simply repeal the HHS rule, it would allow any employer to deny any service based on any religious or “moral” objection. Have your popcorn ready.

*Because I live a vibrant and exciting lifestyle.