As the cases challenging the Health and Human Services mandate make their way through the courts, the main claim is that those who object to the mandate on the basis of religious conscience should be exempted from the law’s requirement of providing objectionable drugs and services. The goal is admirable, but this way of thinking isn’t. I’ve become convinced that we should see protecting religious freedom as grounds for limiting political power, which means striking down laws that threaten that freedom rather than granting exemptions to laws that otherwise stand intact.

The idea that the First Amendment could be the basis of a constitutionally required exemption from otherwise universal legal duties did not arrive in American law until 1963, in Sherbert v. Verner. The case concerned a Seventh-day Adventist who would not work Saturdays and thus was denied unemployment benefits. The Supreme Court held that the free exercise of religion required an exemption from an otherwise valid policy.

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