Religious Liberty Takes Center Stage


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The Supreme Court upheld the Affordable Care Act June 28 as a permissible exercise of Congress’ taxing power.

In so doing, the court guaranteed that the religious-freedom challenges to the Health and Human Services mandate will take center stage in the months ahead.

The court’s decision addressed the narrow question of whether Congress had the power, under Article I of the Constitution, to pass the health-care law. Although the Supreme Court concluded that the law was impermissible under the Commerce Clause — which was the Obama administration’s chief argument for the law — a 5-4 majority of the court concluded that the law was permissible because it could be viewed as a tax.

Nothing in the court’s opinions directly addressed the religious-freedom challenges brought in the 23 lawsuits challenging the HHS mandate that all employers must provide insurance coverage for contraceptives, sterilization and drugs and devices that cause early abortions. In fact, every justice who voted to uphold the law was quite clear that Congress’ exercise of its taxing power remains subject to other constitutional guarantees like the right to religious freedom.

For example, Chief Justice John Roberts, writing for the majority, explained that “[e]ven if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.” In other words, Congress may have authority to penalize organizations that refuse to comply with its mandates. But any penalty will be struck down if it violates “other requirements in the Constitution,” such as the First Amendment — which is just what the HHS mandate does.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were even more explicit. They wrote that “[a] mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

Again, that is just what the HHS mandate does: It “interfere[s] with the free exercise of religion” by forcing religious organizations across the country to violate their religious beliefs. It also interferes with the freedom of speech by forcing employers to provide “counseling and education” about how to use drugs and devices that cause early abortions.

Thus, while the president can surely savor the victory of having the individual mandate declared a constitutionally permissible tax, his administration has dodged but a single legal challenge. June 29 they will awake to the same 23 religious-liberty lawsuits that have been brought challenging the HHS mandate to date. And they can be confident that more lawsuits will soon follow, as employers across the country come to terms with the requirement that they start providing these drugs and devices starting this August.

Of course, religious freedom is not protected only in courtrooms. Roberts issued an important reminder in his opinion: that it is not the court’s job to “consider whether the act embodies sound policies.” Rather, “[t]hose decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

So, while the court’s decision guarantees that the Affordable Care Act lives to see another day, it also guarantees that the religious-freedom challenges to the HHS mandate will continue — and likely increase. Whether that really turns out to be a win for the president will depend on judgments yet to be made, both in the courts and at the ballot box.

Mark Rienzi is senior counsel for The Becket Fund for Religious Liberty.