Why Decriminalizing Polygamy Will Hurt the Affordable Care Act (or Possibly Help It, if Someone Plays Their Cards Right)

I'm not lawyer, so feel free to dismiss the following speculations as completely groundless. But they seems at least plausible to me, nonetheless.

First, the federal district court of Utah has ruled, in Brown v. Buhman, a case that arose from the attempt to prosecute the polygamous Brown family (of TLC's "Sister Wives") under Utah's very strict anti-bigamy and anti-cohabitation statute, a law's whose convoluted history dates directly back to the Utah Territory's early attempt to prove to Congress that it was serious about the Mormon church's historical practice of plural marriage, is unconstitutional. So polygamous cohabitation is now decriminalized in the state of Utah, and given the precedent of Lawrence v. Texas, it seems likely that such decriminalization is likely to spread. Chris Henrichsen has a good rundown of the discussion which this decision has sparked, but let's focus on just one part of it.

Second, the part that makes me curious is that a key component Judge Clark Waddoups decision is that Reynolds v. United States, the famous decision which rejected the Mormon church's attempt to defend itself constitutionally, under the Free Exercise Clause, against the federal government's efforts to destroy its practice of plural marriage, is a reflection of "Orientalist" assumptions rather than a thoughtful consideration of the problems of religious pluralism, and should, therefore, "no longer be considered good law," and ought to recognized "as binding [only] on the limited question of any potential free exercise right to the actual practice of polygamy."

Third, it so happens that Reynolds v. United States was prominently cited by Justice Scalia in one of my most disliked Supreme Court decisions of the modern era, Employment Division v. Smith, a case which, for all intents and purposes, undermined the Sherbert Test, a judicial principle which had developed over decades of decisions which held that, broadly speaking, any generally applicable government action which arguably infringed upon the religious practices had to demonstrate a "compelling state interest" for doing so. As has been widely noted in the scholarly literature, Scalia's opinion essentially read the First Amendment's Free Exercise Clause as a "Free Belief Clause"--that is, following Employment Division v. Smith, you had a constitutional right to believe whatever you wanted, but no constitutional guarantee whatsoever of ever being therefore allowed to do or not do something in accordance with that belief.

Fourth, Waddoups claims that, in attacking Reynolds as bad law, his opinion nonetheless does not have any negative implications for Employment Division's limiting of religious exceptions, because one can see in Scalia's use of the notion of "hybrid rights" sufficient cause to support his original opinion, completely aside from his use of Reynolds as a controlling precedent. Count me as dubious of that claim. Waddoups himself makes use of the Supreme Court's Church of Lukumi Babalu Aye v. City of Hialeah decision to get around Employment Division and emphasize the importance of demonstrating a "compelling state interest" if the criminalizing of cohabitation under Utah's particular statute was to be defended, and while he sees the plaintiffs in this case as being able to make use of the "hybrid rights" doctrine in making their argument (that is, they aren't just invoking the Free Exercise Clause, but multiple other constitutionally protected liberties as well), he admits that it's not a very useful or clear doctrine, requiring separate judgments about what liberties, beyond the free exercise of one's religious beliefs, constitute a "colorable claim." I suspect that there is at least a moderately good case that this decision will give opponents of Employment Division the leeway to push back in the direction of the Sherbert Test when it comes to religious exercises which run counter to generally applicable laws. And good for them!

But what does that have to do the Affordable Care Act? Only that, fifth, there is--I think, anyway--a better than even chance that, should the above reading of Judge Waddoups's decision be taken seriously, if could have significant consequences for the legal arguments likely to come before the Supreme Court when it hears Sebelius v. Hobby Lobby Stores next year. That case is entirely tied up with the Religious Freedom Restoration Act, a piece of legislation designed explicitly to re-instate the religious privileges which Employment Division, following Reynolds, put a big question mark beside. I've no sympathy whatsoever for the idea that for-profit corporations should be able to collectively claim the same sort of First Amendment religious freedoms and rights which individual citizens can, but unfortunately, for reasons I've explained before, I continue to believe (like dozens of decidedly non-paranoid religious organizations and universities across the country) that the contraception mandate needs some further qualifying and pushing back. For all the arguments, in the name of equal coverage, which can be made in its defense, the arguments for preserving the power of religious bodies, however constituted, to be able to fully define themselves, up to the limit of "compelling state interests" to the contrary, are in my view stronger. I'm fully aware that, in light of the near unanimity of the practices in question, and in light of the large number already existing state laws which mandate the same thing of insurance providers which operate in their borders, this debate can seem terribly narrow-minded, to say nothing of misogynist. But so long as we have--stupidly!--employer-provided medical insurance, the standardization of insurance policies will entangle those employers, even if only symbolically, with agendas not necessarily of their own choosing--and I tend to feel that doing damage to a religious organization's ability to define itself, in the name of something relatively non-compelling (given the affordability and accessibility of means of contraception) just isn't worth it.

And so, sixth, this makes for situation that provides some potentially dramatic outcomes for the Affordable Care Act, one way or another. Should the Supreme Court be persuaded even marginally by post-Brown v. Buhman arguments of the sort that I mention above (which can't be guaranteed, since Scalia, as an obvious and unapologetic opponent of the law, would find himself in a position of being able to attack the ACA only by agreeing with an attack upon an opinion which he wrote!), the result could be spun politically as a major defeat for the law as a whole. But an equally plausible possible outcome, and one I would greatly prefer, would be the administration to recognize the changing legal landscape regarding religious exceptions, spin their battle before the Supreme Court as a necessary step to get some "clarity" in the law, and then promptly--with a show of politically well-timed back-handed gratitude--recognize that the mandate would have to be significantly altered if it is to be made compatible with what some shadowy return to Sherbert Test standards would necessitate for insurance-providers with some religious entanglement, thus significantly minimizing certain (particularly Catholic) organizations' frustration with the law. This would allow its defenders to go into the election season of 2014 talking about the law's actual progress and genuine complications, and not about a bitter fight which the administration should have never opened the door to in the first place.

 Likely? Probably not--I mean, like I really know anything about the law at all. But still, I can see this decision coming out of Utah upsetting the chess board a little bit--and who knows where other players, given the already ongoing high-stakes game over religious exemptions, will move their pieces now?