In a response to my last post, Anselm writes that "most court cases are settled on rather narrow (and often technical) legal grounds. That need not mean that larger principles may not lie behind the specific arguments. To denounce the articulation of the principles as ‘hyperbolic’ simply because the courts are not well set up to decide on broad moral principles is not really fair."
The issue here, however, is not the articulation of principles--which courts routinely engage in even when deciding cases on the narrowest of grounds. It is the extent to which a case threatens those principles. And here it should be noted that when it comes to the free exercise of religion, the Supreme Court has been more than capable of deciding on broad principles, and saying so.
Consider Cantwell v. Connecticut (1940), which federalized the Free Exercise Clause by way of the Fourteenth Amendment. The case involved three Jehovah's Witnesses charged with violating state and local laws after proselytizing in a heavily Catholic neighborhood of New Haven. In a unanimous decision, Justice Owen Roberts wrote that "to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."
Or take Church of Lukumi Babalu Aye v. City of Hialeah, in which the Court decided that Hialeah had unconstitutionally passed an ordinance against animal killing in order to inhibit the local practice of the religion of Santeria. In his unanimous opinion, Justice Anthony Kennedy wrote, "Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom."
And then there's Employment Division v. Smith (1990), where by a 5-4 margin the Court decided that two members of the Native American Church had no free exercise right to use peyote as part of the practice of their faith, on the grounds that religious practices do not enjoy constitutional protection against neutral laws of general applicability. Advanced byJustice Antonin Scalia in his majority opinion, this new doctrine was, declared Justice Sandra Day O'Connor for the four-member minority, "incompatible with our Nation's fundamental commitment to individual religious liberty."
By contrast, the question raised by the current lawsuits is whether it is constitutional for the federal government to decide that if certain religiously identified but non-ecclesiastical institutions (e.g. universities and hospitals) provide health coverage, such coverage will include contraceptive services at no charge to the institutions. To claim that this requirement represents a grave threat to religious liberty, as the president of Notre Dame et al. do, seems to me hyperbolic. Compared to the aforementioned cases, the imposition on free exercise is minimal.