"Health-Law Contraceptive Case Skews Ideological Lines on High Court"

"I think it's ironic; I agree with Justice Brennan," said Mark Rienzi of the Becket Fund for Religious Liberty, the advocacy group that recruited Hobby Lobby to challenge the Affordable Care Act's contraceptive regulations.

It is true that Oregon v. Smith, written by Justice Scalia, provides for a more restrictive view of free exercise of religion  than Justice Brennan supported. Let us note Scalia argued that exemptions to general laws would be "courting anarchy" and that it is "horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice." You would think he would at least concur in recent RFRA rulings here to flag such concerns or to suggest some support for more limited applications of the statute's principles.

Maybe, I guess, he is washing his hands of it if the Congress wishes to inflict this upon the courts -- though his concerns appear to have separation of powers flavor -- as a matter of policy.  But, when reporting such apparent strange bedfellows, articles should also note that Justice Brennan has handled things differently than some conservative RFRA supporters.  A basic difference, which in one way or another got support of four justices at the time (Stevens joined the main opinion without comment but I question if he would disagree if pressed), was flagged:

I write separately to emphasize that my concurrence in the judgment rests on the fact that these cases involve a challenge to the application of 702's categorical exemption to the activities of a nonprofit organization. I believe that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular.

The application of the exemption to a for profit corporation raises different concerns, one reason why the Supreme Court was wrong in Hobby Lobby to flag the Obama Administration for selectively treating non-profits differently in the exemption context.  Overall, when a claim was made in a way that would burden third parties, balancing occurred:

An exemption by its nature merely permits certain behavior, but that has never stopped this Court from examining the effect of exemptions that would free religion from regulations placed on others. See, e. g., United States v. Lee, (citation) ("Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees").

The broad claim that "complicity" even by for profits like Hobby Lobby that results in burdens on third parties  should be covered causes various difficulties. Also, Justice Brennan applied his version of what was warranted for individual liberty in this context a somewhat different way as shown by his opposition to the Hyde Amendment or funding to sectarian abstinence only groups. Thus, the line drawing and weighing is significantly different as applied; the "agreement" lacking in key ways.

Finally, I wish the coverage of the Indiana RFRA law was not filled with excessive usage of generalities as to what exactly the law was particularly supposed to add in respect to religious liberty.  One problem is that key support came from groups like this:

SB 101 will help protect religious freedom in Indiana by providing protection for individuals with sincerely held religious beliefs, along with Christian businesses and churches.  SB 101 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).

The writer there can respect the motives of various backers  while still realizing as a whole the law is problematic.  He cites someone who argues that the "business" part of this argument, if pressed, will not hold up.  Who's to know, especially -- as already noted -- the language is more protective than other laws applied to require service?  It seems about as likely that such laws led to the more expansive language in the first place.  As to "churches," why were the old laws not good enough?  What do you mean "supporting" -- when dealing with public parks or the like?

A few benign sounding cases are cited like growing a beard in prison (already protected by federal law) or the right of a church to feed the homeless in a park. That latter example is particularly curious. What stopped them?  And, if a non-sectarian group wished to do so, should not they have the right to do so? What in particular about it being a religious group was a problem? Finally, was the breadth of the language here necessary to deal with such issues? The same applies with favorite examples like caterers serving pork or something though do not know what stops people from refusing to serve a particular item. The concern there to me would be whom you serve.  And, that would be an open-ended exception to civil rights laws if evenly applied.  

The Indiana RFRA law comes off largely as symbolic legislation, which is not inherently wrong -- when people argue some gun regulation will do little to reduce gun violence, that isn't by itself damning, especially since "little" still means something.  That goes to the merits. There are some valid, at least arguable, religious exemptions.  Sometimes, such as denying coverage to students in a private college, this will be bad policy but (especially if not taken too far) valid law.  But, this law goes much further than that.

Update: Indy Star is on board with need to balance off this law.