By Brandon Bub
Last week, the Supreme Court issued an injunction temporarily blocking the Obama administration from enforcing a provision of the Affordable Care Act upon a group of Catholic nuns that requires insurers to provide contraception coverage for their beneficiaries. While the injunction is not necessarily a reflection of the Court’s views of the merits of the law, the provision has also been at issue in a similar case this term brought before the Court by Hobby Lobby.
“Religious Freedom” tends to be the rallying cry for detractors of the contraceptive coverage requirement, as many Catholics cite mandatory birth control coverage as a violation of their religious doctrine. However, the issue of free exercise of religion has long been politically contentious, and it’s an issue the Supreme Court has had to confront before.
In 1986, Justice William H. Rehnquist (just a few months out from becoming chief justice) issued a 5 – 4 opinion suggesting that the First Amendment’s “Free Exercise” clause did not guarantee a Jewish Air Force officer the right to wear his yarmulke with his uniform, siding with the military’s reasoning that such religious adornments disrupted troop uniformity. The controlling votes in that case, Goldman v. Weinberger, actually came from the Court’s most politically conservative justices. In his opinion, Rehnquist emphasized that the Air Force’s need to “foster instinctive obedience, unity, commitment, and esprit de corps” was a compelling enough justification to abrogate Rabbi Goldman’s right to freely practice his religion by means of wearing his yarmulke.
Congress, in response, offered a rule in the 1988 National Defense Authorization Act allowing members of the armed forces to wear religious apparel in uniform, and the law was signed by President Reagan. Perhaps more interestingly, the effects of that reversal have persisted for the past three decades. Just last week, the Pentagon took additional steps guaranteeing troops the right to wear head scarfs, turbans, and beards to accommodate “sincerely held beliefs (conscience, moral principles, or religious beliefs) of service members.”
But free expression in the military has not exactly been a hot-button issue, perhaps precisely because the armed forces in the past few years have been more willing to accommodate a diverse set of religious beliefs. Moreover, it’s important to note just what kinds of religious expression are being invited into the fold here. Goldman was never suing to be able to wear a crucifix. Were he a Christian, it’s doubtful he would have ever had any issues in the first place. The original Goldman opinion, in spite of its rationale based on deference to army rules, bespeaks a more conventionalist (i.e. majoritarian) approach to the Free Exercise clause.
Though it would be fallacious to ever describe the United States as a “Christian nation” in a legal sense, the fact remains that such a tradition often remains a social norm against which other traditions often have to be measured. Whether or not that same conception of the Free Exercise clause will prevail in the Court’s decisions on the Obamacare contraception cases will be interesting to watch. Should the more conservative wing of the Court prevail, it’s likely that the resulting opinion would grant far less deference to the Obama administration in its enforcement of the contraception provision as it did the military with Goldman.