Since we will be looking at civil liberties this week - which includes religious liberties - its appropriate to look at the recent controversy over the proposed rule regarding contraception coverage. Previous posts have focused on the political aspects of this controversy, but I want you to think about the constitutional questions it raises in light of previous Supreme Court decisions regarding the extent of these protections.
The truth is that the free exercise of religion has in fact been limited many times over the course of American history if the Supreme Court has ruled that the greater interests of society overrules it. This week's power points contain examples. One of the more famous was the 1878 decision to uphold laws against polygamy despite the fact that Mormons practiced polygamy as part of their religious beliefs.
Since the contraception rule has been announced, commentators have looked at the case of Employment Division v Smith to get an idea about how the current court might handle a proposed constitutional challenge. In brief, the court ruled that laws against peyote use - which led to the firings of two members of an American Indian tribe who had ingested peyote during a religious ritual - took precedence over their claim of religious freedom. This was because the laws were neutral to religion and the purpose of the law represented a "compelling public purpose" that government has the right to pursue.
Since the rule has yet to be finalized, or passed, there is nothing for the court to actually review. We don't know what an actual dispute might look like, but we do know - based on the last week's written assignment - that the Texas Attorney General is filing suit against the proposed rule. So based on what we know about the rule, and how the court's have rule don previous cases, how might they rule on this case? Try to figure out what arguments will be offered on either side.
