In addition to Constitutional protections under the First Amendment, there is also support for religious freedom in statutory law, McConnell said.
He explained that the Religious Freedom Restoration Act of 1993 makes it clear that the federal government may not “substantially burden” the exercise of religion unless it is furthering a “compelling government interest” and employing the “least restrictive means” of doing so.
In this case, he said, it is “rather obvious” that the mandate imposes a substantial burden on the free exercise of religion by requiring religious individuals and organizations to participate in something that they consider gravely immoral.
Furthermore, in granting an exemption at all, however narrow, the administration was acknowledging that “this would be a burden” on the free exercise of religious groups that find it objectionable, he said.
He added that the mandate would impose a substantial burden even with the administration’s promised accommodation, which he said is “no difference in substance whatsoever” than the original regulation.
Turning to the standard for a “compelling government interest,” McConnell explained that the federal government issued the mandate because it believes that contraception coverage is important and wants to place the cost of covering it on employers.
This is “not a compelling interest at all,” he said.
He noted that multiple states have contraception mandates in place, but none of them implement them in the same sweeping way with such a narrow exemption as the federal mandate does.
If it were a compelling government interest, the regulations would not have included any exemption at all, he explained.
Finally, McConnell said, the mandate is not the “least restrictive means” of carrying out the government’s goal.
The administration could achieve its objective in another way, such as expanding Title X funding of contraception, without forcing religious employers to violate their consciences, he observed.
(Story continues below)
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Because it fails to meet the standards set out for religious freedom cases, the mandate violates the Religious Freedom Restoration Act and should not be allowed to stand, he said.