The rule of law applies to all, even religious believers

The alleged right of conscientious exemption to following the law must end

November 21, 2013 7:00AM ET
Protesters demonstrate in Phoenix, March 23, 2012 as part of a nationwide rally against the Obama Administration’s HHS mandate that would obligate Catholic organizations to provide contraceptive services to their employees.
Matt York/AP

Just societies enact laws to promote the general welfare. Some people, invariably, refuse to comply with those laws, and they face sanctions in accordance with them.

In the United States, however, we have institutionalized a right of noncompliance to the law, to the detriment of society as a whole. Its latest outrageous expression is the attempt by Roman Catholic businesses to avoid contraceptive coverage as part of the Affordable Care Act.

America is a religious country, to be sure, but it is also unique among democratic societies for the extent to which it grants religious believers special exemptions from complying with the laws that apply to the rest of us. In 1990, in Employment Division v. Smith, the U.S. Supreme Court, in an opinion by Justice Antonin Scalia, a conservative, tried to put a stop to this legal inequity, noting that "the right of free exercise (of religion) does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" At issue was denial of unemployment benefits to Alfred Smith, an Oregon drug-rehabilitation counselor, after he was fired, but for cause: He had lost his job because he had tested positive for use of an illegal narcotic, but one required by the rituals of the Native American religion to which he subscribed. The court concluded that the state did not have to carve out exceptions to a law regulating illegal narcotics to accommodate religious believers.

The Supreme Court's decision met a massive backlash by religious believers, who, unsurprisingly, welcomed the special exemptions to general laws that applied only to them. Congress, the federal courts, and state courts and legislatures all bent over backward to make clear that those with sectarian religious beliefs did not have to comply with the laws that apply to other citizens.

Twenty years ago this month, Congress passed the Religious Freedom Restoration Act (RFRA), which required that any laws (including, for example, laws that make certain drugs illegal) that burden the free exercise of religion must serve a "compelling" government purpose and employ the least burdensome means available — a demanding standard of constitutional review that usually results in the laws being invalidated, at least as applied to the religious believers burdened. Although the U.S. Supreme Court subsequently held RFRA unconstitutional as applied to the states, many states responded by enacting their own RFRAs, which again exempted religious believers from any unduly burdensome state law. (Congress passed an additional law in 2000 to restrict any regulations that burdened religion, if those regulations affected activities receiving federal money. This had a significant impact on zoning regulations, from which religious institutions regularly seek exemptions.)

Emboldened by the dramatic reaction to the Supreme Court's modest attempt to impose the rule of law, religious believers have lobbied aggressively and successfully for a proliferation of rules, mostly at the state level, that exempt religious believers from the law. For instance, mandatory vaccination schemes have collapsed in many parts of the country in the wake of "religious" objections, resulting in the return of whooping cough and measles as threats to public health. Pharmacists decline to dispense legal medicines that supposedly conflict with their religious beliefs, and state laws, including in my home state of Illinois, now excuse them from their dereliction of duty. The latest attempt by religious believers to evade the law is now front-page news: Employers are challenging the Affordable Care Act requirement that they provide insurance covering contraceptives, on the grounds that the owners of the company, in some cases, allegedly have a religious objection to contraception.

Sectarian religious believers in the United States have sought and often received special treatment — a 'free pass' for breaking laws they do not like.

Think about this objection for a moment. The Affordable Care Act mandates employer insurance for various medical services. But some employers object to providing insurance for services of which they disapprove. In a free society, should it really be possible for a Catholic boss to decide what medical services her employee can receive? According to the interpretation of federal law by the U.S. Court of Appeals for the Seventh Circuit, it is. (I fear the Seventh Circuit's interpretation is correct.)

Some two decades after the Smith decision, with the health rights of employees coming into question, we are now at a crossroads in the United States. We can have a society based on the "rule of law," in which general principles that promote neutral purposes are enacted with the expectation that they are obeyed. Or we can carve out exemptions for anyone who has a religious objection to complying with the same laws the rest of society obeys.

Requiring that people comply with fair laws is compatible with religious liberty. The U.S. Supreme Court has, quite correctly, invalidated laws that merely purport to be neutral. When a Florida town claimed that concern for animal welfare motivated a ban on animal sacrifices, the court deemed it an unconstitutional attack on the free exercise of religion, since the record made clear that the town council did not care at all about animals, only about the local religious sect — of which it disapproved — that sacrificed them.

Such instances of state intolerance, to be sure, should be blocked by the courts. But such injustices are not at issue in the special exemption cards that have been issued to religious believers in recent years. No one thinks the Affordable Care Act was designed to oppress Catholic business owners, yet, thanks to RFRA, it looks as if Catholic bosses can decide what medical services their workers are entitled to receive through the worker-paid insurance plans.

For several decades now, sectarian religious believers in the United States have sought and often received special treatment — a "free pass" for breaking laws they do not like. To be sure, the religious objectors claim a “conscientious” objection to the laws. But conscience is not proprietary to religious believers, and most conscientious objectors to laws either bite their lip and comply or face the consequences. I have no doubt that the vast majority of religious objectors to the Affordable Care Act will, if forced to do so, "bite their lip" and comply with the law that everyone else complies with. As things stand, however, religious believers recognize that our laws may give them a free pass if they can claim a religious objection to compliance and can convince a court to recognize it. They thereby have a perverse incentive to push for exemptions.

The United States is not a theocracy. Everyone, even religious believers, should be required to comply with the law.

Brian Leiter is Karl N. Llewellyn Professor of Jurisprudence at the University of Chicago and author of "Why Tolerate Religion?"

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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