The contraception mandate under Empoyment Division v Smith

James Edward Maule Maule at
Mon Feb 13 10:54:39 PST 2012

I have a question about laws of general applicability. More than a few posts ago, someone - I apologize for not remembering who - gave the speed limit law as an example of a law of general applicability. I recall the point was that even if a person or religious organization had a religious reason for violating the speed limit, the claim would fail.

Thus, I wonder about the argument being made by the Becket Fund. The speed limit set by the speed limit law (a) does not apply to everyone (e.g., emergency vehicles), (b) [can't think of an analogy], and (c) provides for a system of individualized exemptions in the form of permits issued to allow violation of the minimum speed requirement for transporting certain large objects (and I think there are some instances where permits can be obtained to exceed the stated maximum).

Thus, I wonder, are these the tests for finding a law not to be of general applicability?

Jim Maule

From: religionlaw-bounces at [mailto:religionlaw-bounces at] On Behalf Of Will Esser
Sent: Monday, February 13, 2012 1:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: The contraception mandate under Empoyment Division v Smith


In the complaint filed by Belmont Abbey College challenging the contraception mandate, the Becket Fund argues that the contraception mandate is not a law of general applicability because among other things (a) it does not apply to all employers (for instance it does not apply to employers with fewer than 50 employees); (b) it does not apply to certain "grandfathered" insurance plans; and (c) it provides for a system of individualized exemptions by allowing HHS the ability to grant waivers in response to individualized requests.  You can access the complaint here:

Maybe the question to be asked is which "law" must be of general applicability?  In Smith, it strikes me that the peyote statute was a stand alone criminal law.  In this instance, I understood that the contraception mandate was just one component of the overall  federal healthcare reform act.  So it seems to me that in interpreting whether the law is one of general applicability, a court would be required to look at the entire healthcare reform act and determine what waivers and exemptions were included in it, rather than just narrowly focusing on the contraception mandate itself.



Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina

"We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light."
(Attributed to Plato, 428-345 B.C.)

--- On Sat, 2/11/12, Brad Pardee <bp51414 at> wrote:

From: Brad Pardee <bp51414 at>
Subject: The contraception mandate under Empoyment Division v Smith
To: religionlaw at
Date: Saturday, February 11, 2012, 12:31 AM

I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith.  Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial.

It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause.  From what I've read, the regulation in question appears to be both neutral and of general applicability.  A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out.

What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith?  I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote.  The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though.  I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith.

Brad Pardee

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