Inept NYT Op-Ed Defending HHS Mandate—Part 1 - By Ed Whelan - Bench Memos - National Review Online

Inept NYT Op-Ed Defending HHS Mandate—Part 1 - By Ed Whelan - Bench Memos - National Review Online: "3. Samuels also makes a superficial argument that the HHS mandate doesn’t violate the Free Exercise Clause, as interpreted in Employment Division v. Smith. (In fairness to Samuels, I will note that many of the assertions that the HHS mandate does violate the Free Exercise Clause are equally superficial and fail to take account of Smith.)

What Samuels fails to recognize is that the exclusion of a broad swath of employers from the mandate for secular reasons—e.g., the employers who have so-called “grandfathered plans” and small employers (see points developed here, in the context of RFRA’s “compelling interest” standard)—means that the mandate isn’t neutral and generally applicable. (As the Sixth Circuit recently explained, a law is not neutral and generally applicable if it “permit[s] secular exemptions but not religious ones.” See also the Third Circuit opinion by then-Judge Alito that I discuss here.) The mandate is therefore subject to the same test under the Free Exercise Clause that it faces under RFRA, and it flunks that test for the same reasons."

'via Blog this'

The argument that the mandate to provide contraceptives is unconstitutional makes a lot more sense to me now.