President Barack Obama's attempt to calm the contraception mandate waters meets mixed reviews

Published: Friday, Feb. 10 2012 5:12 p.m. MST

Volokh cites the 1981 Thomas v. Review Board decision as a useful analogy. There a Jehovah’s Witness refused to work in a factory that produced turrets for tanks, saying it would make him complicit in war. Defenders of the action said the law didn't require the actual participation in war. The court emphatically sided with the believer.

While Thomas was decided under the earlier constitutional law rules, Volokh says the RFRA “principles today are very similar, namely that it is not up to us to decide what this guy sincerely believes.” The only real question, Volokh says, is whether the government has landed on the “least restrictive means of achieving some compelling state interest.”

Under RFRA, Volokh suggests, Courts may actually be more ready to strike down a regulation challenged by a believer, since the Courts would now not be acting against Congress, but rather enforcing Congressional will against an unelected bureaucracy.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.

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