The First Amendment Dog

In the Wall Street Journal this morning, David Skeel, a law professor at the University of Pennsylvania, criticizes the Obama administration’s refusal to exempt  many religious organizations from the requirement that employer health-care plans cover all the costs of contraception.  Skeel concedes that the decision by the Obama administration is probably consistent with existing First Amendment law, but he worries that this will lead to years of “unending” legal battles. According to Skeel, courts are “precisely the wrong place to resolve the difficult accommodation issues that are pressing in from every side.”

This is an odd claim. After all, the legislature has left the Obama administration the discretion to make the decision it has made. Indeed, courts do not need to enforce First Amendment rights unless governments violate them. I would think it is precisely the role of the courts to enforce those rights. The real problem is that the Court led by Scalia has slammed the door on the refusal of government to grant exemptions for religious organizations to generally applicable laws. A scholar who would let his theory of the judicial role be the tail that wags the First Amendment dog cannot be heard to criticize the political process when it produces bad results.    

Comments

[Marc DeGirolami]

Steve, deaed right. Sometimes I wonder whether Justice Scalia miscalculated by vesting too much faith in the people.

On the other hand, even Employment Division v. Smith, for all of its touted stringency and rule-like qualities, left an important exception for regulatory schemes with individual assessments. In work I am doing now, I find that the individual assessment exception to Smith is being used more and more frequently by lower courts and litigators to circumvent Smith.