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.