Ellis West has published an op-ed for the Richmond Times-Dispatch arguing that “if the questions is whether the [contraception-coverage] regulation violates the religious freedom guaranteed in the First Amendment, the answer is clear. It does not.”
Thomas Berg at Mirror of Justice thinks otherwise, on two points:
“One point is about the constitutional free-exercise claim. According to Ellis, Catholic objectors are arguing that “groups have a right to be exempt from obeying valid laws everyone else has to obey, provided they have religious reasons.” Actually, though, it is definitely not the case that “everyone else has to obey” the mandate. As the complaints in the lawsuits state, millions of small employers (employing under 50 people) are exempt; significant percentages of other employers are grandfathered; and individualized waivers, running probably in the thousands, have been granted by HHS to others. See paragraphs 36-53 of that complaint (filed by a non-Catholic objector, Colorado Christian University). When the law accommodates the interests of so many organizations—the interest in alleviating burdens on small business, the various interests reflected in the granted waivers—there is a strong First Amendment argument that the law must likewise accommodate the constitutionally recognized interest in religious conscience. In the terms of Employment Division v. Smith and cases following it, the mandate is not “generally applicable.”
Read the second point here
