In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith.  For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to  claims that a law infringed on practices of individual religions.  In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life.  (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.)  In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.

On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine.  Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities).  This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.

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