More than 80 friend-of-the-court briefs have now been filed in the Supreme Court’s contraception mandate case, and the most provocative question they address is whether for-profit corporations have a First Amendment right to the free exercise of religion. But even if the Court says they do, that doesn’t guarantee Hobby Lobby and Conestoga Wood their exemptions from the mandate.
That’s because they’d still have to meet the standard established in 1993 by the Religious Freedom Restoration Act (RFRA) to mitigate the effects of the Court’s Smith decision. That is, they’d have to persuade the justices that the federal government either doesn’t have a compelling interest for imposing the mandate or fails to impose it in the least restrictive way possible.
In the brief he’s written for the American Jewish Committee (AJC) and the Jewish Council for Public Affairs, the AJC’s Marc Stern makes a strong case that the mandate is justified by a compelling government interest in promoting both gender equality and public health — gender equality by ensuring that women don’t pay more for health coverage than men and public health by reducing unintended pregnancies, improving birth spacing, reducing invasive abortions, and preventing various reproductive disorders. The brief makes clear that less restrictive ways of achieving the same ends would be impracticable or unacceptable to the plaintiffs.
It’s not that Stern, an Orthodox Jew who played a key role in drafting RFRA, is dismissive of the plaintiffs’ religious concerns. Indeed, he assumes that the mandate “imposes a substantial burden on their religious practices.” But, he writes, “A nation as large, diverse, and religiously inclusive as the United States simply could not function if it were required to accommodate every citizen’s religious objections under all circumstances.”