Sandra Fluke, Free Exercise, and the Contraception/Abortion Mandate

by Adam Freedman

No speaker at the recent Democratic National Convention – with the possible exception of Bill Clinton – generated more buzz than Sandra Fluke.  Fluke, of course, is the former law student who made headlines when she testified in Congress in favor of a then-proposed rule that would require all employers, including Catholic institutions like her alma mater, Georgetown University, to provide employees (and students) with free contraception as part of their health insurance plans.  It is ironic, to put it mildly, that a law student at an elite university has willingly served as cheerleader for the administration’s ongoing war against free exercise of religion.

AP Photo/J. Scott Applewhite

AP Photo/J. Scott Applewhite

That proposal, designed to implement ObamaCare’s preventive are provisions, requires all employers – including religious hospitals, charities, and universities –to provide their employees with insurance coverage for contraceptives.  The mandate includes contraceptives that are really abortifacients that  destroy the already-fertilized egg.  The only religious organizations eligible for an exemption would be those that exist purely for their own members; namely, churches–but not church-affiliated groups.

Following a public outcry, President Obama forged ahead with the rule, but announced a “compromise”: religious organizations would not have to cover abortion and contraception, but their insurance companies would have to do so – for free (as though people wouldn’t catch on that they are effectivey subsidizing contraceptives via higher premiums).  In any event, the idea of passing on the obligation to third party insurers does not work for many institutions, like universities, that tend to self-insure.  (this issue should be explained more fully—many people do not understand the concept of self insurance and how this could fly into an issue with the mandate)

According to press reports, some 40 Catholic institutions have joined in a variety of lawsuits challenging the contraception/abortion mandate.  These lawsuits have an excellent chance of succeeding because federal laws (such as the mandate) are subject to the Religious Freedom Restoration Act (or RFRA), which prevents government from substantially burdening free exercise of religion unless in furtherance of a compelling government interest, using the least restrictive means possible.  This standard of review is known as strict scrutiny, and it is a tough standard.

But it’s worth noting that even without RFRA, the contraception/abortion mandate should be struck down as a violation of the original meaning of the Free Exercise Clause of the First Amendment.  Indeed, RFRA was enacted to undo the Supreme Court’s ill-conceived 1990 decision in Employment Division v. Smith, in which the Court held that states are never required to exempt religious adherents from complying with “neutral laws of general applicability,” even if those laws interfere with “free exercise of religion.” In other words, the police can raid a Catholic Church and arrest the priest for serving communion wine to minors since the drinking laws are neutral.  Or the FDA could mandate that meat should always be served with milk, provided the law doesn’t specifically target Jews for enforcement.

The majority’s opinion, written (surprisingly) by Justice Scalia, concludes that the protection of religious minorities must be achieved via the political process.  But that turns the First Amendment upside down. The whole point of that amendment—indeed, of the Bill of Rights—is to protect against majority oppression. If all the framers meant to say was, “Speech and religion will be tolerated to the extent permitted by Congress,” there would have been no need for the First Amendment at all. Law professor (and former judge) Michael McConnell rightly branded Smith as a “revisionist” version of the First Amendment.

Under Smith’s version of the First Amendment, the only religious freedom that is guaranteed is the freedom to believe. But the real First Amendment goes much further: it protects the freedom to “exercise” one’s religion.  The framers and ratifiers of the First Amendment understood, as we do today, that the word exercise conveys action, not merely thought. Samuel Johnson’s Dictionary—the most influential of the founding era—defines exercise to include things like “Labour of the body” and “Use” and “Act of divine worship” (emphasis added). In Smith, Justice Scalia conceded that the exercise of religion may require “physical acts [such as] assembling with others for worship service, . . . sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” But the lynchpin of his opinion is an 1879 precedent (Reynolds v. United States) in which the Supreme Court upheld laws against Mormon polygamy on the grounds that the free exercise clause protects only beliefs and not conduct. Not that the Court had any real evidence to that effect – the best it could do was dredge up Thomas Jefferson’s “wall of separation” letter to the Danbury Baptists, written years after ratification of the First Amendment.

Had the Smith Court consulted original meaning – as Justice Scalia normally does – it could never have invented a neutrality exemption for infringements of free exercise.  Granted, there must be some limits to religious ritual—human sacrifice, for example, is probably out of bounds—but the Founders had a strong bias against government-imposed limits. As Professor McConnell has demonstrated in several exhaustive law review articles, the Founders understood free exercise to require government to accommodate religious practices except when doing so would threaten the “peace and safety of the State.” As far back as the Maryland Charter of 1649, the law provided that “noe person . . . shall bee any waies troubled or discountenanced for or in respect of his or her religion nor in the free exercise thereof,” so long as—and here’s the crucial bit—that person is not “unfaithfull to the Lord Proprietary [i.e., the Governor], or molest or conspire against the civill Government.” In short, the colony could not “trouble” any person’s free exercise of religion, except in cases amounting to treason.

After independence, the early state constitutions protected the individual’s right to exercise religion “provided he doth not disturb the public peace” (New Hampshire) or “the peace or safety of this State” (New York). Similarly, the Northwest Ordinance of 1787 prohibits the government from disturbing the “mode of worshiping” of all persons who behave in “a peaceable and orderly manner.”

Free exercise was not a matter of legislative whim in the early states, nor in the Northwest Territory. Rather, the government was required to accommodate religious practices to the extent that the religious exercise was consistent with the public safety. If that was the meaning of “free exercise” in the states and territories in 1791, why would anyone have read the First Amendment as providing less protection?

It is true that none of those early charters used the words “compelling interest”; however, “compelling interest” is a decent summary of the reasons that were thought to justify abridgment of religious freedom—peace, safety, and the prevention of “licentiousness.” Certainly, “compelling interest” is a lot closer to original meaning than anything in the Smith decision, for which there is no historical antecedent.

There was no reason to abandon original meaning in Smith.  Justice O’Connor for example, reached the same result as Scalia by applying the compelling interest test; that is, she simply concluded that Oregon had a compelling interest in enforcing its drug laws. But O’Connor’s reasoning did not attract a majority of the Court. Scalia’s decision allows states to pass laws hostile to religion so long as they are careful to dress them up as “neutral laws of general applicability.”  As noted, in the wake of Smith, Congress passed RFRA, which declared that the compelling interest test, i.e., strict scrutiny, was the true measure of free exercise.  Unfortunately, in 1997 the Supreme Court held that the act could be applied to federal laws, but not State laws.

The Obama mandate is, of course, a federal law and so RFRA still applies.  In the near term, the Courts should strike down the contraception/abortion mandate as violating RFRA.  But that still leaves States free to burden religion with “neutral” laws; indeed some of them have adopted their own contraception mandates and have gone so far as to revoke the licenses of pharmacies that refuse to dispense “morning after” pills.  The only way to revive the original meaning of the Free Exercise Clause is for the Supreme Court to reverse Smith — and for Sandra Fluke to find somebody other than a Jesuit university to pay for her contraceptives.


Adam Freedman covers legal affairs for and hosts a regular podcast devoted to legal and constitutional issues. His book on constitutional originalism, The Naked Constitution, will be published by HarperCollins in October 2012. Freedman’s commentary has been featured in the New York TimesWall Street Journal, National ReviewSlate, and Newsweek International. Please visit to read more of Adam Freedman’s written works.

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