This post is dedicated to Zhubin. Normally I wouldn't break from my oh-so-strenuous finals study schedule to jot a quick post, but he like, demanded it, so I'm fulfilling my obligation.
On the frontiers of the First Amendment there is a giant storm brewing. Pharmacists in several states have refused to fill prescriptions for birth control, citing religious opposition. Some of the refusals have involved types of birth control which are arguably abortificiants, some have not. Regardless of the type of birth control, the issue centers on whether the Free Exercise clause allows an individual to refuse a legal service.
There are other ways of framing the issue, of course, and a series of variations on the main theme. Related questions would focus on the role of the government in requiring pharmacists to provide service. In fact, in Illinois such a law has already been passed. Is this Constitutional? That's a good question. Lawsuits are proceeding.
I for one would like to think that the Free Exercise clause trumps in this case. It seems to me that the freedom to practice religion trumps almost every single other right. It was, after all, the reason most people emigrated to this country. More essentially though, if the government can forcibly interfere with religious practice, we've crossed into a very dangerous realm. And yet, after a very cursory review of the case law (in a discussion with my roommate who is currently taking Constitutional Law II), the only pertinent language we could find said that so long as the governmental regulation was general and did not target the religious group, then the regulation was legitimate and any interference with the practice of religion was a tragic consequence that the individual had to deal with. It came up in a case where a religious ceremony involving the use of peyote led to a positive drug test, and a subsequent firing and denial of unemployment rights. And Scalia wrote the opinion. So it might not look so good for Free Exercise of Religion.
But if this really is the case, (and again, this was a cursory review, and I could easily be wrong (hopefully next year I can take a religion and law class and learn precisely about this sort of thing)), then this should really get some blood boiling. Because most government regulations are generally applicable. Just imagine the government requiring an Atheist to say the pledge. Or requiring Catholics to hire female priests. Or prohibiting religious jewelry in schools. These might be the next step - and that's a scary proposition.
But something doesn't quite sit right here, because it has already been resolved that Atheists don't have to say the pledge, so there must be something else going on in the case my roommate found. Does anyone know any more about this? What is the legal standard here? Is it an open question?
Regardless of the settled law, this is a really interesting problem. On the one hand, individuals shouldn't be denied medical treatment because of the religious beliefs of others (or probably more accurately they shouldn't be inconvenienced). On the other, free exercise of religion is one of our most treasured rights. I obviously come down strongly on the side of free exercise. But both sides have points in their favor. I'm interested in discussing this more, in exploring the nuances of the problem. It's a fun topic, but with very real implications for the world we live in. Let's hope Free Exercise emerges the victor.
So there you have it folks. Keep this topic on your radar screen. It's going to be a big battle. And a fun ride.
Some may have more cash than you
Others take a different view