As Adam Liptak reported in the NY Times today, the Supreme Court is poised to grant cert Tuesday in a case challenging the Affordable Care Act’s contraception mandate as a violation of religious liberty. The case raises important questions about the free exercise rights of for-profit corporations and is, in that sense, a sequel to Citizens United, albeit involving religion instead of speech. But it is also interesting for what it reveals about the ongoing power struggle between the Supreme Court and Congress. In particular, the case shows how Congress’ efforts to counteract an unpopular Supreme Court decision may come back to haunt it.
Consider the following chronology of events:
1990 – A (mostly) conservative majority of the Supreme Court holds that neutral, generally applicable laws that incidentally burden religious practice are subject only to rational basis review under the Free Exercise Clause, instead of the strict scrutiny that had been applied for nearly three decades.
1993 - Spurred by public outrage over that decision, Congress, in a rare show of bipartisan unity, responds by passing the Religious Freedom Restoration Act, which attempts to restore the standard of strict scrutiny for any state or federal action that substantially burdens religious exercise. Read More