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Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

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