How Scalia Helped Obama Defend The Birth Control Rule

TPM explains How Scalia Helped Obama Defend The Birth Control Rule "‘One thing I think is crystal clear — there is no First Amendment violation by this law,’ Adam Winkler, a constitutional law professor at UCLA, told TPM. ‘The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.’"

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"The 1993 Religious Freedom Restoration Act said any law that burdens religious freedom must satisfy strict scrutiny. The Supreme Court later said it cannot apply to states (which is why the 28 states that already have the birth control rule the White House wants to take nationwide are in the clear), but held that those requirements shall apply to federal laws. First, the law may not be a “substantial burden” and can only be an “incidental burden” on religious practices; second, it must be justified by “compelling government interest”; third, it must be narrowly tailored to pursue that interest. And it’s an open question whether the birth control requirement passes that level of scrutiny, Winkler said, arguing that the Religious Freedom Restoration Act is opponents’ best hope to reverse the rule through the courts. “I could see arguments go both ways,” he said."