John Boehner is arguing that the government’s policy requiring religious hospitals and universities to include contraception coverage in their insurance violates the First Amendment. This is plainly wrong. The government’s policy covers all hospitals and universities, not just religious hospitals and universities. Accordingly, the policy is part of a generally applicable statute that happens to hit religion. According to the Court, the refusal to create an exemption is not a constitutional violation.
In my view, however, it should be unconstitutional. The chief constitutional culprit is Justice Scalia. He wrote the opinion providing thick constitutional cover for Obama’s contraception policy. Perhaps the Republicans will get together and hang their favorite justice in effigy for failing to respect religious freedom. Don’t hold your breath.