Savor the irony.
Obamacare advocates have frequently cited Supreme Court opinions authored by Justice Scalia in the 1990 case Employment Division v. Smith and the 2005 case Gonzalez v. Raich. In the former, Scalia essentially said it was okay to fire Native Americans for using peyote even if such use was part of religious ritual. In the latter, he ruled that Congress could proscribe home-grown marijuana under the Commerce Clause.
Scalia’s opinions were thought to undergird, respectively, the controversial HHS regulation requiring employers to include contraception as part of health benefits packages (i.e., Catholics shouldn’t be able to skirt generally applicable laws) as well as the individual mandate (i.e., it was a “Necessary and Proper” means of carrying out the rest of the law).
It’s a near certainty that Scalia will not prove so cooperative.
And, furthermore, there’s a good chance that Congress’s response to the Smith ruling — the 1993 Religious Freedom Restoration Act — will be the basis for a successful challenge against the HHS mandate.
The Hill newspaper has details:
RFRA sailed through Congress with broad bipartisan support in response to an unpopular decision by the Supreme Court that was seen as curbing Native Americans’ religious freedom to use peyote, a traditional hallucinogen.
Now it will force the government to prove that federal regulators did not have another way to expand women’s access to birth control that would be less burdensome on religion — an argument experts say conservatives can win.
“I think the odds are pretty good for the plaintiffs here,” Marc DeGirolami, an assistant law professor at St. John’s University, told The Hill.
All told: Scalia won’t be the savior of Obamacare that liberals naively thought he might be. And the Democrat-backed antidote to Scalia’s undermining of religious freedom is now being used against them.
Quite a two-fer.