“So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform.”

— Supreme Court Justice Elena Kagan


Freedom is a powerful nuisance when one’s goal is uniformity. The incompatibility of these two conditions is at the core of the latest Supreme Court test of Obamacare.

During last week’s oral argument in a much-discussed case that challenges the federal health care law’s “contraceptive mandate” — which requires employers providing health insurance to cover a full array of birth-control methods — Justice Kagan took the prize for pithily framing the underlying issue. Her nightmare scenario, should employers win the right to “opt out” of paying for medical procedures their faiths abhor, is a society where “piecemeal” religious beliefs would undermine the government’s preference for a “uniform” health care system for all.

But isn’t that what it means to have religious freedom, freedom of conscience — that people’s right to be true to their own beliefs is more important than many things the community as a whole might prefer?

As it happens, social conservatives might, if they tried, be able to understand how progressives longing for health care uniformity feel. Conservatives have seen the shattering of various forms of uniformity they cherish. One of their nightmares, quickly becoming reality, is a society where “some people could define marriage one way, and some could define it another way, and nothing would be uniform.”

In another conservative nightmare, long since come true, “some people could believe life begins at conception, and others could believe that it doesn’t, and the very right to life would be a piecemeal affair …”

No doubt people on all sides would insist that these issues are different from one another. But what mainly makes the difference is how much one values each type of uniformity — and how much one respects the right to dissent from it.

That’s the kind of judgment the Supreme Court has to make in the cases brought by Hobby Lobby and Conestoga Wood Specialties. Both are closely held for-profit corporations owned by devout Christians; both are happy to provide employees insurance for most forms of birth control but balk at methods such as IUDs that they consider equivalent to abortion. Under Obamacare, they must provide them all.

Riddles and dilemmas involved in defining the boundaries of religious freedom have a storied history. In 1935, they played a role in persuading the Supreme Court to strike down Franklin Roosevelt’s most ambitious New Deal attempt to centrally direct the American economy, the National Recovery Administration. A case brought by Kosher poultry merchants, defending their religious slaughtering practices, became the NRA’s undoing (though not on religious freedom grounds).

The roots of today’s legal showdown were planted in 1990, when the Supreme Court, in Employment Division vs. Smith, struck a controversial blow for uniformity over faith. (Intriguingly, Justice Antonin Scalia, who wrote the majority opinion, and Justice Anthony Kennedy, who joined it, are still on the court.)

In Smith (a case involving drug use in Native American religious rites), the court ruled that the Constitution’s guarantee of “free exercise” does not provide any religious exemption from general laws — laws that aren’t aimed at religion but just happen to conflict with it. The decision was widely decried for narrowing America’s traditional view of religious liberty, and in 1993 Congress overwhelmingly enacted (and President Bill Clinton signed) the Religious Freedom Restoration Act. The RFRA basically overruled the court and re-established the rule that government can only “substantially burden” religious freedom when it is advancing a “compelling interest” in the “least restrictive” way possible.

As sweeping (in the opposite direction) as the ruling it upended, the RFRA is the battleground on which the contraceptive mandate battle is being fought. The justices and lawyers skirmished last week over the meaning of “compelling,” “substantial” and “least restrictive,” and over whether a corporation — at least, a for-profit corporation — can have religious rights at all.

But such wrestling over legal definitions and distinctions often has less to do with how jurists will decide a case than with how they will explain a decision already made on more visceral grounds. Whether one thinks uniform access to all forms of contraception is truly critical; whether one truly respects those who disagree — those are the questions that probably count, certainly for most Americans and maybe for the judges, too.

Meanwhile, there is Kagan’s fear of where all this might lead. If Hobby Lobby and Conestoga were to win, might some employers claim religious objections to blood transfusions, vaccinations, treatments for sexually transmitted disease and who knows what else? They might.

In many such cases, the crucial — one might say “compelling” — importance of uniform coverage for lifesaving medical interventions would seem harder to dispute than it is in the case of birth control. Yet some other employers might well secure the right to “opt out” here and there.

But if religious freedom is as central to American life as Congress seemed to believe when it passed the RFRA, some piecemeal erosion of uniformity would seem an affordable price to pay.


D.J. Tice is at Doug.Tice@startribune.com.