How Scalia Helped Obama Defend The Birth Control Rule

The Obama administration is already facing lawsuits challenging its requirement that insurance plans cover birth control as a violation of religious freedom. Speaker John Boehner (R-OH) has flatly called the regulationunconstitutional. But although it’s unclear how much traction the legal challenges will gain, the administration and its backers have one unlikely man to thank for helping their cause: Justice Antonin Scalia.

“One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

The Reagan-appointed conservative justice authored the majority opinion in the 1990 decision Employment Division v. Smith, a critical precedent to the birth control case, decreeing that religious liberty is insufficient grounds for being exempt from laws. The Supreme Court said Oregon may deny unemployment benefits to people who were fired for smoking peyote as part of a religious tradition, seeing as the drug was illegal in the state.

“To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” wrote Scalia, an avowed Catholic and social conservative, quoting from an ages old Supreme Court decision and giving it new life. His opinion was cosigned by four other justices.

Thanks to this decision more than any other, Winkler said there’s no reason to believe the constitutional argument against the rule has any legs. And while the high court later ruled to create a ministerial exception in anti-discrimination laws (to shield the Church from liability in forbidding women to become priests), it has not altered the Smith precedent insofar as it applies to the birth control rule. “So it would seem extremely difficult” for the courts to overturn it on that basis, Winkler posited. “I don’t think there’s any real argument.”