Justice Sonia Sotomayo Blocks ACA Provision

[Jim Lane]

144. That description of what should be the case is not the law in the United States.

First, I completely agree with you about not putting words in other people's mouths. I'm responding only to the broad position, whoever may assert it (and I think many would), that "there should not be religious tests for secular law, ever."

The law in the United States does make accommodation for religious beliefs. There are instances in which most of us have to obey a particular law, but some people are exempted from it because it violates their religious beliefs. Two examples that occur to me:

1. The Amish are exempt from Social Security. It violates their religion -- I'm not clear on why but I think at least one Amish man went to prison rather than pay FICA taxes, before the exemption was in place. Furthermore, the Amish community has its own internal mechanisms for supporting the elderly. Thus, the government's goals in enacting Social Security are still met.

2. Members of the Native American Church are exempt from the prohibition on the possession and use of peyote, because it is part of their traditional religious practice. This is in the Code of Federal Regulations: "The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration." (from 21 C.F.R. § 1307.31, full text here)

This doesn't mean that religious beliefs will always trump secular law. You're free to start a religion that worships ducks and calls on all true believers to kill people who kill ducks, but if you then put on your priestly robes and go out and shoot Phil Robertson, you'll still be imprisoned.

In sum, religious freedom in the United States means that we have rejected both of the easy, simple solutions -- the idea that religious belief always excuses noncompliance with secular law, and the idea that it never does. It's a balancing of interests.

The appeal to the Supreme Court about the ACA raises an additional complex question about the respective roles of elected officials and the Court in striking that balance. There's an argument that the government is permitted but not required to accommodate religious beliefs in this fashion. On that view, the ACA could, under the Constitution, have granted an exemption of the type sought by the plaintiffs in this case, and giving some people a special privilege based on their religion would not have violated the First Amendment, but since Congress and the President choose to enact the law without giving them that privilege, the Court should find that there's no First Amendment violation.

This area of the law is complicated enough that it's not surprising Sotomayor wanted to wait until the entire Court had decided the question before the plaintiffs were exposed to any fines for noncompliance.