From Peyote to Contraceptives: Free Exercise & the Political Process (by 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.