From Peyote to Contraceptives: Free Exercise & the Political Process (by Bryan Cottle)

Ph.D student Bryan Cottle

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

The relationship between medicine, religion, and law has recently become a dominant theme in the media. Outrage has been conveyed over the Obama Administration’s decision that nearly all employers cover contraceptives in their employees’ health care. Originally, this was meant to include Catholic schools, hospitals and charities. In response, the Catholic Church, understandably, opposed such an action. The Church felt the law violated their religious conscience because they had long been opposed to contraception.  This situation, and the Obama Administration’s recent decision to compromise on the issue, has brought to my mind a U.S. Supreme Court case that might shed some light on this situation.  The majority decision in Employment Division, Department of Human Resources of Oregon v. Smith (1989) makes two key claims that help in this contraception debate. First, it teaches us that an individuals’ religious beliefs do not excuse them from compliance to the law. Second, it suggests that religious individuals seeking exemptions to neutral laws should refer to the political process to gain protection. These two claims are powerful because, as will be shown in the contraception matter, they allow ground for laws to be made while also allowing for religious conscience to be protected politically.

In Smith, the case itself was not about medicine or medical practice. The case revolved around the issue of whether a man (Al Smith) who was fired from his job for religious sacramental use of peyote was eligible for unemployment benefits.  Eventually, the case went to the United States Supreme Court and influenced the interpretation of Free Exercise jurisprudence. One of the influential claims that came out of the Oregon v. Smith process was that an individual could not be excused from compliance with a law because of his/her religious beliefs. Although other Supreme Court cases had stated similar viewpoints prior to Smith, the majority decision in Smith strongly reaffirmed it.  Justice Antonin Scalia, in the majority decision proclaimed, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” (Smith). This claim can directly apply to the contraceptive issue.  Despite this heated conflict, it appears that even if contraception violates religious belief, compliance to that law must be made. Smith firmly states that if the burden placed on an individuals’ religious belief is from a generally applicable and neutral law, while meeting the rational basis test, that a Free Exercise defense is invalid.  Hence, those who argue that the contraceptive issue represents a First Amendment violation of Free Exercise will be making a mute point in light of Oregon v. Smith.

The Smith case does however make a second claim, which I believe protects the religious conscience of individuals from being thrown out the window.  Justice Scalia commented in this decision that the values protected in the Bill of Rights are not simply “banished from the political process” (Smith). Being cautious of how religious beliefs could cause some to become a law unto themselves, the court placed its confidence in the political process to help those of various religions become exempt from religious burdens created by neutral laws. Although I fear that such a reliance on the political process could hurt minority groups and minority religions, Justice Scalia rightly argued for the political process. Taking this reliance into account, the political process becomes validated in this current contraceptive issue.

On January 20, 2012 it was announced that although houses of worship would be exempted from the contraceptive health care provision, religiously affiliated employers, Catholic universities, and Catholic hospitals would still be required to abide by the law. This outraged many, as Catholic bishops and nuns protested the government policy.  As the New York Times in a recent article mentioned, it was this protesting that pressured the Obama Administration to call a compromise. The compromise stated that, “Catholic institutions would not have to pay for the birth control coverage or refer their employees to it, but that it would all be covered directly by the insurance companies” (New York Times, “Obama Shift on Providing Contraception Splits Critics,” Feb. 14, 2012).  What we witness here is that the use of the political process, as discussed in Smith, was able to protect the rights of individual religious conscience. In the use of political processes that the Catholic Church had available in our governmental system, the Catholics were able to get the Obama Administration to give into a compromise. Although, as the New York Times article describes, not all Catholics were satisfied with the compromise many Catholic organization leaders were satisfied. For those that still are frustrated by the compromise, we can assume that they will continue to push the political process for change.

In closing, it might seem strange to move from peyote to contraceptives, but it can be argued that the Smith decision has validity in the current contraceptive debate. It’s two claims, that of compliance and the addressing of grievances in the political process, can help allow for laws to be made which benefit common interests, while at the same time emphasizing the value of the political process in the protection of religious conscience. I still admit, I have some hesitancy in the concept of protecting religious conscience through the political process, but several years later it appears that the Smith decision been confirmed in the reaction of Catholics to President Obama. Also, I feel that the contraceptive issue, because of its general applicability and lack of specific aim at a religion does not violate the First Amendment. Truly, does not the Smith decision allow room for generally applicable laws to be created as well as the ability to protect religious conscience in the political process? I answer, yes.

Bryan Cottle is a PhD student in the History of Christianity and Religions of North America at Claremont Graduate University. His interests include Mormon Studies, Religion and Politics, and Religious Violence and Peace Studies.

  • http://www.churchstate.org Alan Reinach

    This position is flawed on at leasat two counts: first, the political and legal processes failed the Catholic Church in various states, including California, a battle which our organization fought vigorously a decade ago. Secondly, few religious groups have the clout of the Roman Catholic Church, and it took the church declaring war on the president during an election year to get any political results. Of course, the story isn’t over, and the devil’s in the details: it remains to be seen whether the “compromise” is viable.

    • Bryan Cottle

      I totally agree with you Alan on the second count. That’s why I specifically said that I had reservations on what such a decision would do for minority religions and minority groups in America. But for those who look at Smith, they can see that what has occurred recently by Catholics was the use of political pressure in the political process. It can be said that what the majority decision stated has happened in this case, and the political process has pushed for exemption in their direction. A potential point of success for the Smith decision seen in the very political process the court references. In that regard the political climate worked for them. But yes, I do have hesitations about what minority religions could have accomplished in that same political climate.

      I also understand your frustration on the first count because these decisions can cut close to the heart of deeply held religious beliefs. The question remains however; what can we do when access to a particular form of medicine which is in the common interest of many cannot be received through particular employers or institutions that have conscience objections to that medicine? This issue takes on more sensitivity for those on both sides of the issue since the Catholic Church is the largest private health care provider in the U.S. and has merged their hospitals together with many secular hospitals in the country. In these cases should hospitals of these mergers that wish to maintain their ethical approaches to health care regulate the decisions of others when they are now more quasi-public institutions for the public use?

      That is where the issue gets sticky. If access to contraceptives is considered in the general common interest for many, should they not have access to it, even if it is through a Catholic quasi-public institution ? That is why the first point of the Smith case comes in handy for general interest laws and can help the common interest be met. However, to leave off with only the first point would be a blow to religious conscience. Instead of allowing the court to decide every religious exemption criteria the court kicked it to the political process. It appears that these two together can give us a governmental system that at least gives fertile ground for both sides to get something of what they want in this tense situation. This was the heart of my blog. I feel the majority decision principles of the Smith case can be a guide for us in these type of free exercise decisions. Of course, there is a negative side of the issue if a state legislature does not grant exemption in certain cases (which can be really hard to determine for those institutions that are quasi-public with a combination of religious and secular). I do believe the spirit of the Smith case however was that they would in particular situations.

      To hear more of your thoughts on this Alan let me ask, what ways do you think we can mend this tension between those who desire access to contraceptives and employers and institutions that believe it to be a violation of their conscience to grant and administer them?

  • Kile Jones

    Great post Bryan. I can tell your trying to find an appropriate balance between the application of neutral and generally applicable laws and religious freedom. You are correct in connecting Smith with the current issues surrounding contraceptions and faith-based organizations. It also reminds me of Reynolds, where the Justice said that if people became a law unto themselves the government would exist in name only. This is why “compliance to that law” must be made, even if it violates certain peoples religious conscience. Thanks for your post, I can’t help but agreeing with most of it.

  • Matt Bussell

    Thanks for you post Bryan. I think that the relationship between religion, particularly Christian churches, and the state has grown increasingly complex as politicians incorporate religious rhetoric in their campaigns. The compromise between the Roman Catholic Church and the Obama administration is indicative of the contemporary interaction between religion and state. While religious conservatives may argue that the state is oppressing their religious beliefs through the Obama health care plan, the compromise discussed by Bryan shows that while church and state may disagree about medical treatments, they are capable of working together. I too am worried about the protection of religious minorities who do not have the political clout of the Roman Catholic Church, but I do not think that the current law is designed to infringe upon the religious beliefs of individuals.

  • Drew Baker

    Great post, Brian. I think your application of Smith to the latest contraception case is both helpful and useful. As I read your post, I was reminded of a different case (North Coast Women’s Care Medical Group, Inc. v. San Diego County Superior Court – 2008), in which the Supreme Court of California actually followed both the strict scrutiny and the neutrality tests in order to reveal that the medical group (which has discriminated by sexual orientation) had no standing what so ever under the Free Exercise clause, no matter which test one followed. I appreciated this approach, because I can imagine that individuals opposed to the the new Obama contraception policy might respond to your application of Smith by claiming that Smith was wrong, and that the court should return to the stronger “strict scrutiny” test. However, like in North Coast, I believe that the policy would be upheld as constitution even under the strict scrutiny test (since the government has a strong interest in preserving and protecting the rights of women), so regardless of the interpretation of the Free Exercise clause, ultimately, I think the protestors to the contraception policy have no constitutional standing.

  • Katie Kubitskey

    Great application of Smith to the contemporary Catholic contraceptive debate. As Drew mentioned, it also reminded me of the balance being struck in North Coast v. San Diego Superior Court. I agree with you that a balance can often be made between generally applicable laws and conscientious objectors. However, in other cases of sole practitioners or single institutions in a community, this process becomes more complicated and adherence to generally applicable, anti-discrimination laws becomes necessary above all.

  • Katrina

    Thanks for your thoughts Brian. One issue I don’t think gets addressed in this debate is whether institutions deserve conscious objector exemptions. Because I remain skeptical of CO exemptions when they restrict or deny access to legal, safe, preventative health care to women (who also have their own rights), I am especially hesitant to grant this exemption to an organization (which cannot have a “conscious”… although the recent corporate personhood “status” may challenge my skepticism). Regardless, the compromise offered by the Obama administration allows for a generally applicable (and much needed) law to be created while simultaneously protecting the religious consciouses of both people and institutions. Perhaps they took a cue from the Smith case.

  • Grace Yia-Hei Kao

    Bryan and students in R&L:

    I’m so pleased to see you all wrestling with these difficult issues and attempting to reason legally according to precedence and various tests (e.g., rational basis, strict scrutiny, etc.). When we revisit Smith, we will explore in fuller detail why the holding was so controversial. But Bryan’s larger point – about the relationship and interaction between constitutional guarantees and statutory protections (the latter based on the results of legislative bodies through the political process) is one that I want to urge us all to keep thinking through…

  • KJ

    Thanks for a good article Mr. Cottle.

    I am curious about one twist here. In the Smith case he had done something religious (taken peyote) and then suffered damage apparently through loss of income.

    Under the current issue, the Catholic Church is being required to pay for something which is against their doctrine. Since the flow of funds involved is coming directly from the church does this have any effect on the matter?

    Since all benefits and pay come from the account of the church I am not sure a strict Catholic would agree that the portion paying for birth control is fungible.

    After the point where the employee has been paid it would stand to reason that the money is no longer controlled by the church but instead fully by the employee and therefore the person can buy birth control or what ever without the church being tied in any way to the purchase, sale, use, etc.


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