raison de arizona wrote: ↑Wed Sep 07, 2022 2:25 pm
The judge ruled that claims backed by zero evidence must be honored if religious people believe them to be true. This is a Big Problem.
I hate the outcome. But it's not something that this judge pulled out of a hat. In fact, under current federal law and Supreme Court precedent, I'd say that the judge in this case is absolutely correct.
Disclaimer: I am not a lawyer; this is not legal advice. Not to be taken internally. May cause drowsiness; alcohol may intensify this effect.
The First Amendment protects the free exercise of religion. The meaning of this protection has been the subject of a great deal of debate and considerable legal swings over time.
What exactly is a religion? On the one hand, if we say that 'religion' is whatever beliefs someone wants it to firmly hold, then that makes the Free Exercise clause just a general statement of 'people can do pretty much what they want'. That clearly can't be right. On the other hand, if we confine 'religion' to some set of institutions with a certain amount of structure and dogma -- and in particular, if we let courts and legislatures have free rein to say 'Your institution is a religion and yours isn't', or 'Your individual beliefs don't matter because we don't think that they sufficiently align with your religion's beliefs', then the Free Exercise clause becomes meaningless, because the government can always just say 'Your religion doesn't count.' That can't be right either.
Likewise, what exactly is 'free exercise'? Again, it can't be 'whatever the government decides it is'. But it also can't be 'whatever a religious group decides it is, up to and including human sacrifice.' It has to be somewhere in the middle.
In the 1960s and 1970s, the Supreme Court had swung somewhat far in the direction of 'the government can't regulate religious practices'. Most notably, in 1963, there was
Sherbert v. Verner, in which Adell Sherbert (a Seventh-day Adventist) was fired for refusing to work on Saturdays, and South Carolina denied her unemployment compensation claim. The Supreme Court held that this infringed her religious freedom. In doing so it created what's been called 'the
Sherbert test': a government can't pass a law that coerces an individual to forego a religious practice, unless the law passes strict scrutiny. Strict scrutiny requires the law to fill a compelling state interest, and to be narrowly tailored (meaning that there's no reasonable alternative approach that would fill that same interest without burdening the religious practice). That's a quite difficult standard for a government to meet. So
Sherbert gave a very sweeping meaning to the 'free exercise' part of the 1A equation. But it involved a truly core belief of the Seventh-day Adventists, who pretty much everyone would agree is a religion. The Court didn't have occasion to grapple with the 'religion' side of the equation.
Over the course of the 1980s, the Court started to swing things back in the other direction. This led to
Employment Division v. Smith in 1990. Smith was fired for his use of peyote as part of Native American religious ceremonies. Smith's unemployment claim was denied by Oregon, because Smith was fired for use of an illegal drug. The Oregon Supreme Court found that this violated the
Sherbert test, and declared it unconstitutional. The US Supreme Court reversed, on the grounds that the laws in question weren't directed at religion; they were "neutral laws of general applicability", and not motivated by religious animus. This swung things back to a much more limited interpretation of 'free exercise'. Again, this involved a strong belief of a group that everyone agreed was a religion; the 'religion' side of the equation didn't come into play.
Congress was not fond of that result. In 1993 it passed the RFRA, which effectively codified the previous
Sherbert test, swinging 'free exercise' back to a very broad scope. This applied to both federal and state laws.
In 1997, the Court decided in
City of Boerne v. Flores that the RFRA was unconstitutional as applied to the states, because Congress couldn't put that sort of sweeping limitation on state laws (not even through the 14th Amendment's due-process clause).
But there's no such problem with Congress putting limitations on its
own federal laws. In 2006, the Court ruled that the RFRA was constitutional as applied to the federal government, in the cumbersomely-named case
Gonzales v. O Centro Espírita Beneficente União do Vegetal.
All of this means that states means that states currently have considerable flexibility in how to manage the 1A 'what is free exercise' question. But the federal government must pass the
Sherbert strict-scrutiny test.
In the meantime -- and I won't run through the cases, because this is already way too long -- the Court has also swung the 'What is a religion?' question rather far towards the 'whatever an individual sincerely decides it is' side.
The result is what we're seeing here.
Personally, I think that these vaccines are great, and that making them broadly and cheaply available is A Great Thing. But there's also no question that they're religiously controversial, and that 'I don't want to pay for things that might encourage sexual behavior' is a valid religious belief under the Court's current view of the Free Exercise clause.
The federal government could have made the vaccines available through federal agencies, or by directly using federal funds to compensate providers for the cost of the vaccines, or by giving tax credits to consumers. Instead, the federal government required health care policies -- even health care policies regulated by states and sold to private parties -- to cover these vaccines. That predictably runs straight into the RFRA and the codified
Sherbert test. Even assuming that we all agree that the federal government has a compelling interest in making these vaccines available, it can't show that requiring private health care policies to cover them is a narrowly tailored response -- because, again, Congress could have done the job itself.
So if you think that this is a bad outcome -- and again, I agree with you -- then the cause of that bad outcome isn't this judge, or anything specific to these regulations. It's the RFRA, and to a lesser extent, the Court's current interpretation of the Free Exercise clause itself.