According to a CBS News/New York Times poll, over 60 percent of Americans support “federally-mandated contraception coverage for religiously affiliated employers”; only 31 percent oppose it. Other polls have found that about the same percentage of Americans believe the government should require employer healthcare plans to include contraception coverage but that fewer believe the same requirement should be placed on religious entities.

Those voters who are under 30 (what’s up, Penn students?) tend to support the federal mandate more than the general population does.

What do you think of President Barack Obama’s mandate regarding birth control? Did you support it when it was placed on religious employers and churches? Do you currently support it now that it no longer applies to churches?

We examine the constitutional issues of each side of the argument below. Feel free to comment with your own views.

Here is a summary of the arguments made by the opposing sides when Obama extended the mandate for contraception coverage in healthcare plans to religious employers and institutions.

The unconstitutional position

Opponents of the mandate point to the Free Exercise Clause of the First Amendment. Forcing religious employers to provide contraception, when they advocate against it due to religious beliefs, impinges on their right to free exercise. Expect to hear this group point to the recently announced Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the Court unanimously ruled that anti-discrimination statutes did not apply to churches when they were hiring ministers to teach their religious instruction.

The constitutional position

This group will argue that, while the mandate may affect religious groups, the law applies to everyone (is “generally applicable”), and promotes a compelling governmental interest. Therefore, a special exception does not need to be carved out for religions. This group will likely cite Employment Division v. Smith, in which the Court ruled that a law banning the use of peyote could be applied to the Native American Church, whose members smoked the substance following religious rituals. This group will further argue that while certain religions may not believe in contraception, that belief — like the use of peyote — is an external aspect of the church. Many argue, especially those opposed to the Smith ruling, say this argument isn’t grounded in the Constitution, but the Court declined to overturn Smith in Hosanna-Tabor and differentiated the two by saying that forcing a church to hire a minister intervened in “an internal church decision.” If constitutional jurisprudence turns on that issue, contraception could fall outside that scope.

More to consider

More judges may be inclined to claim that mandating the provision of contraception is not as compelling an interest as banning drug use (many concurrences in Smith declined to agree that generally applicable laws could usually be applied to religious institutions but thought the state had a vital interest in banning drugs). If so, the mandate would be unconstitutional.

Does this religious belief qualify as expression? The doctrine set forth in Smith argues that generally applicable laws do not violate the free exercise clause unless the right to free exercise is combined with some other right (e.g. speech). This is a dubious standard, but is currently the law of the land nonetheless. If the Court found that refusing to promote or provide contraception also qualified as expression or speech, the mandate may be unconstitutional.

How the arguments change now that Obama has shifted the mandate to the insurance companies

Proponents of the mandate would argue an exception has been carved out for religious entities, removing any possible constitutional issue. Just because non-religious entities are compelled to act in a way a religion disapproves of does not mean the law violates the First Amendment.

Opponents argue the free exercise dilemma remains. A good piece taking this side was put forth by Charles Krauthammer, in a column in The Washington Post. “Only churches themselves are left alone. Beyond the churchyard gate, religious autonomy disappears,” he writes. Krauthammer goes on to note that the new mandate still forces church schools and hospitals to provide contraception due to statutory definitions. He also notes that religious institutions are still required to deal with non-religious insurance companies that are providing contraception because of the mandate. Individuals may differ on exactly why the new mandate is unconstitutional, but all at least point to a violation of religious freedom.

So is the mandate good policy, or an overreach of government? Is it smart politics, or has Obama erred in an election year? Or do you believe this represents more than just good or bad policy? Is it, as some have said, representative of Obama’s “autocratic rule,” in which he aims to “purge Christianity from civil society, [and] to marginalize religion from the public square”?

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