Scott Galupo makes the very good point that the Religious Freedom Restoration Act may well invalidate the HHS mandate. (I’m less convinced that either of the Scalia cases have any real bearing on the mandate in the ACA, but I’ve said my peace on that subject for now.)
I want to take the opportunity, though, to remind everyone that religious freedom is impossible.
Winnifred Sullivan’s book argues, in a nutshell, that religious freedom, for individuals, means freedom from religious authority as well as freedom from governmental restriction on religious practice. So, you can’t ask a Catholic prelate whether this or that practice that the law would prohibit (say, putting statues on angels on graves, which is the main example in her book) is actually a formal part of Catholic religious practice, because the prelate has no standing, in a secular court, to rule on the question. If the grieving family feel that it’s an essential that Dad get guarded by a statue of an angel, then that’s their religious practice by definition, and if you want true freedom of religion you have to protect it. But this way, needless to say, lies chaos. Hence the impossibility of religious freedom.
In encourage people to read the book; a one-paragraph summary doesn’t do justice to the argument.
What I’ve argued in the past is that, regardless of where Constitutional doctrine winds up, we should strive to maximize (within reason) the zone of autonomy for religious institutions, because we should view that autonomy as a positive good, not as an absolute “right.” Hegemonic liberalism should be humble enough to accept that it doesn’t know the only ways of knowing, and that there is value, therefore, in having robust voices that claim other modes of knowledge – religious voices being preeminent examples.
Which is why I’ve argued simultaneously that I think the Constitutional objections to the HHS mandate don’t convince me, but that the mandate was a mistake – not a political mistake (it may or may not have been that as well) but a substantive policy mistake. Not because Catholics can’t freely practice their religion if the HHS mandate exists (they clearly can – indeed, it’s really easy to construct workarounds that don’t directly implicate the employer in providing the coverage, in which case I don’t see what the religious objection might be) but because we actively do want the Catholic Church out there living, in its institutions, a worldview with which the majority of the country disagrees, precisely because it has a long and profound history and the majority of the country disagrees with it. This is the kind of situation where “diversity is strength” has some actual meaning in the political ecology.