Thursday, June 20, 2013
Caroline Mala Corbin (University of Miami) and Steven Douglas Smith (University of San Diego) have posted Debate: The Contraception Mandate and Religious Freedom on SSRN. Here is the abstract:
In this online exchange, Steven D. Smith and Caroline Mala Corbin debate the wisdom of religious exemptions from the contraception mandate.
Professor Smith argues that as applied to objecting religious employers, the mandate violates the Religious Freedom Restoration Act, and that contrary arguments are better understood as taking a position against rather than under RFRA. In his conclusion, Prof. Smith argues that free exercise extends to religious associations and institutions, not just to religious individuals.
Professor Corbin disagrees on both points. First, one need not oppose RFRA to conclude that it does not require exemptions from the contraception mandate. Not every asserted burden amounts to the type of substantial burden that RFRA was designed to accommodate. Second, granting extensive religious liberty rights to employers, whether corporations or their owners, overlooks the rights of their less privileged and less powerful employees.