The Obama Administration hasn’t even promulgated its new compromise contraception rule, and already plaintiffs are rushing in to challenge it. Since the regulation isn’t even out yet, these challenges will fail (because the litigation is not “ripe”), but eventually that will occur, and some court might have to look at the issue on the merits. Will the plaintiffs win?

I don’t think so. Most observers have pointed to the Supreme Court’s opinion in Employment Division v. Smith, which states that a law does not run afoul of the Free Exercise Clause if it is a “neutral law of general applicability,” but that isn’t quite right, in my view. Shortly after Smith was handed down, Congress passed the Religious Freedom Restoration Act. RFRA purported to re-establish the previous constitutional standard (which Smith had overturned), from a 1963 case, Sherbert v. Verner. In Sherbert, the court held that if a law “substantially burdens” the exercise of religion, then the government must provide an exemption unless it can show that adherence to the law is “necessary to achieve a compelling governmental interest.” Theoretically, that’s a much tougher test; could the Obama rule survive it?

I think it could: there is a decision considering an issue very close to what plaintiffs would challenge with the Obama rule. The key case is a 1982 US Supreme Court decision, United States v. Lee. There, a group of Amish claimed that paying Social Security taxes violated their religious beliefs. The Supreme Court unanimously rejected their claim. The majority opinion, written by famed left-wing radical Chief Justice Warren Burger, applied the Sherbert test, and quickly concluded that even under this more exacting test, the Constitution does not require a religious exemption.

The Court acknowledged that the Amish were substantially burdened by the government’s insistence that they pay Social Security taxes, but it essentially did not matter. The Court’s justification applies almost perfectly to the Affordable Care Act:

Because the social security system is nationwide, the governmental interest is apparent. The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees…The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system….Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.

Well, couldn’t the government have granted the Amish an exemption? No, said the Court, again for reasons that track perfectly onto the ACA:

It would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference – in theory at least – is that the social security tax revenues are segregated for use only in furtherance of the statutory program. There is no principled way, however, for purposes of this case, to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.

No doubt, plaintiffs will try to distinguish Lee, but they will be weak attempts. They will say that the ACA is not a comprehensive system like Social Security, so a few exemptions here and there won’t matter. But if anything, the ACA’s role as a gap-filler on top of the employer-driven system means that its actuarial necessity is even greater than that of Social Security. Plaintiffs will also argue that the health insurance mandate is not a tax, as plaintiffs have done to challenge the ACA outright. But whether or not that is true, it isn’t relevant in terms of the compelling governmental interest in keeping the system actuarially sound.

Maybe the best way to get around Lee will be to argue that it didn’t really apply the Sherbert test: Chief Justice Burger’s opinion, challengers will say, gave short shrift to what a “compelling” governmental interest really requires (at times, it doesn’t even say “compelling” but rather “overriding,” if one thinks that that matters). Indeed, this is the reason why Lee was not unanimous: Justice Stevens concurred in the judgment because he agreed with the result, but argued that the majority’s “reasoning supports the adoption of a different constitutional standard than the Court purports to apply.” When the Court considered Smith several years later, many scholars argued that the Court had never really applied the Sherbet standard because insisting on religious exemptions in virtually every situation would have caused chaos. But Lee is still on the books, and 8 out of 9 justices held that it applied the Sherbert standard. If precedent means anything, then Lee applies.

In any event, Lee is in my view a very powerful argument for the legality of the rule. There, the government made no exemptions for the Amish, and the Court still upheld the law’s application. Here, the Obama Administration has completely exempted actual religious employers and crafted a workaround for religiously-affiliated institutions so that insurers and not they are paying for the contraception coverage. If the government didn’t have to do anything in Lee be okay, how could a Court say that the exemptions in the contraceptive rule are not good enough? If your answer is “John Roberts” and “Samuel Alito,” then that would be just one more example of how the Right should shut its trap about “judicial activism.”

[Cross-posted at The Reality-Based Community]

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Jonathan Zasloff is Professor of Law at the UCLA School of Law.