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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, March 29, 2012 ::
    Back now.

    I. Obamacare and Raich

    While we're watching and analyzing the Obamacare oral arguments, I'll add only this: I see no reason by Our Hero's regrettable position in Gonzales v. Raich should indicate any likelihood that he will find the individual mandate to be a permissible exercise of Congress's interstate commerce power.

    The relationship between the Obamacare individual mandate and Obamacare itself differs from the relationship between Congress’s power to override California’s medical marijuana law and the Controlled Substances Act: the individual mandate is a key mechanism of Obamacare, if not the key. No one imagines that the Controlled Substances Act operates primarily by nullifying state laws that allow otherwise prohitable drugs. Obamacare does operate primarily by mandating that individuals buy health insurance. Without the mandate, Obamacare will not merely be inconvenienced (as the CSA would have been by California's Compassionte Use Act), it will be stymied completely, or nearly so.

    Oral arguments are notoriously treacherous as indicators of outcomes, but, tentatively, I will say that I see little chance of Justice Scalia not seeing the Obamacare individual mandate under the same Commerce Clause analytic category as Lopez.

    II. HHS Mandate and Freedom of Religion

    Violation of religious freedom is not the only problem with the HHS regulation mandating that religious institutions (which are parts of churches but don't meet the government's definition of a church -- more on that in a moment) cover forms of so-called medicine that at best violate their conscience and at worse, in their view, render them complicit in homicide. (If you didn't "get" that that's what's at stake, you do now.)

    There are good reasons why even those whose objections to the HHS contraception mandate do not take the form I have just outlined should nonetheless not be subject to it. U. of Chicago finance professor and Cato Institute adjunct scholar John Cochrane made that argument in a WSJ op-ed a few weeks ago, and it bears linking, clipping, and re-reading. His conclusion -- "Sure, churches should be exempt. We should all be exempt." -- warms the cockles of my heart, because, as my Regent colleagues know, I am not a huge fan of religious exemptions from otherwise-valid laws. One reason for that, though not the only one, is that such exemptions tend to -- and according to my suspicious mind are intended to -- remove from the political battlefield the troops most likely to combat unjust laws, namely, those with a religious motivation for objecting to them. Buy them off with exemptions, and that sees off much of the resistance to encroaching government.

    But at the same time the religious dimension to the HHS mandate issue is too big to ignore. For one thing, many churches -- ones too small or too docile to bother our President -- are being exempted. More significantly, an administration that was so ardently committed to getting contraceptives of all and any kind into women's hands "free of charge" could hand them out itself, paid for out of general taxation. But somehow that's not enough; no no, you see, the Catholic Church has to be made to hand them over, or at the very least, pay directly those who do. That's obviously very important to this administration -- and it's totally Ctulhu.

    So, if a suit against the HHS contraception mandate based on Free Exercise were to reach the Supreme Court -- what result, in an Employment Division v. Smith world?

    1. RFRA applies. Obamacare is a federal statute, obviously. City of Boerne struck down RFRA as going beyond Congress's 14th Am. Sec. 5 power, but that's only a power to impose Sec. 1 on the states. Of necessity, Boerne said nothing about the possibly continuing applicability of RFRA to federal action. Using the Greatest Law Review Title Evah, Michael Stokes Paulsen said of the federal government that "A RFRA Runs Through It." When the issue came up, in Gonzales v. O Centro Espirita, the Court agreed on this, without analysis, because neither side disputed it.

    The real significance of O Centro lies elsewhere: a. the "substantial burden" test is not hard to pass for RFRA plaintiffs, and b. the "compelling state interest/least restrictive means" is really heard to pass for the government, the way strict scrutiny was always meant to be, but had substantially ceased to be under the FE cases that followed Sherbert v. Verner. Evidently the federal government thought it could enact a genuine compelling state interest test for FE purposes, but still rely on the Court to grant a c.s.i. exception whenever the War On Drugs(TM) requires it. Nope, can't have it both ways. Enjoy your "hoasca," big guys!

    When the Court considers the HHS mandate from a Free Exercise point of view under RFRA, it shouldn't even be a close case.

    2. Even if RFRA did not apply, Sherbert rather than Smith would apply. Smith applies only to laws that actually are "neutral and generally applicable": the more exceptions and exemptions the government grants from any law, the less neutral and generally applicable it is. Obamacare is already cratered with executive exemptions. For this reason alone, the strict scrutiny of Sherbert, rather than the rational basis test of Smith, should apply.

    There is furthermore the possibility that, because Obamacare sets up boards and committees for its own administration, it is therefore what Smith calls "a context that len[ds] itself to individualized governmental assessment of the reasons for the relevant conduct[,]" where Smith itself says that Sherbert continues to apply; and perhaps even (though this is farther fetched) a statutory environment "where the State has in place a system of individual exemptions," and therefore "it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."

    Whether this latter possibility cashes out or not, Sherbert would apply rather than Smith because Obamacare is not a neutral and generally applicable law, and regardless of whether Sherbert or Smith were to apply, RFRA would apply, making the case virtually unwinnable for the government.

    I applaud and encourage all attempts at legislative and lobbying fixes, because "Don't worry, the courts will take care of it" has too often in the past been a bad bet, and is in any case bad civics. But: the Obamaniacs and Church-haters who are triumphantly quoting from Smith are only showing that they don't understand current Free Exercise law.

    3. There is also a lurking Establishment Clause issue. As I mentioned earlier, HHS is undertaking to define what a "church" is for purposes of its pitiful "religious exemption" (for example, a U.S. based branch of Mother Teresa's order of nuns would not qualify, because it engages in activities other than "worship," and serves persons other than Catholics).

    Now, we must grant that some offices of the U.S. Government engage in church-defining all the time, because there's no way around it: the IRS, most obviously, because of envelope-pushing demands for tax exemptions. Amazingly, they've done an all-around passable job with the task. But that's an isolated area of law dealing with one government function, and a highly traditional one at that. A carve-out could be made for tax-collecting.

    Outside of that, the business of telling a church that it isn't one is probably within the range of actions prohibited to the federal government by the rule against making a "law respecting an establishment of religion." The core Establishment Clause violation is giving one church favorable national status; but the clause may also be violated by giving one church inferior status (and let's be honest, we are talking about one church here, even though many other churches have joined in the Catholic Church's protest, thus promoting ecumenism like whoa).

    That's what the Free Exercise Clause is for, you say? Well, I've already given reasons why the mandate also violates that clause as currently construed. But as a vehicle for freedom for churches as bodies, I suggest that the Free Exercise Clause has a more individual focus, and aims first and foremost to make sure that the federal government won't punish people for attending the "wrong" church(es). For the institutional focus, it's the Establishment Clause you want. It's about, you know, establishments.

    :: David M. Wagner 8:08 AM [+] ::

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