The danger of the edict is the mandate that religious institutions must pay for the cost of contraceptives. This is a compulsory new "cost of doing business" and as such, burdens religious institutions both financially (with the cost) and spiritually (by forcing the institutions to act in ways contrary to their faith). The constitutional test is that such burdens on such "bedrock" First Amendment rights must survive a "strict scrutiny" test when evaluated by courts, which will examine whether such impositions can be achieved using a method less burdensome on such a fundamental, protected right to the free exercise of religion.
The "free exercise of religion" is interpreted to mean more than the mere freedom of a religion from overt government persecution. The concept -- as with the concept of virtually all rights in an age of the "living Constitution" -- has expanded to include all sorts of actions. In fact, it has been expanded by some aggressive judges (and surely with the cooperation of some inept or less than enthusiastic advocates for the side of a restrained, traditional interpretation) to become an entitlement to certain privileged status. The New York City Landmark Preservation Board's unique 2010 denial of landmark designation for the planned site of the planned "Ground Zero Mosque" has been lauded -- incorrectly -- as an example of the government's respect for religion, when in fact in has acted as an unconstitutional government preference for a certain religion, a preference which by its nature acts as an unconstitutional disfavoring of non-preferred, lesser faiths.
A larger and also disturbing issue is the assertion that women are entitled to have religious institutions pay for their contraceptives, an assertion which implies that the religious institutions are obligated to pay, despite or in fact because of their religious objections to contraception. The core issue at dispute here is the question of who gets stuck with the bill for the contraceptives; women are free to get and use contraceptives, but that does not mean -- horror of horrors -- that women who want them get them for free (and get to stick the Roman Catholic Church or other religious employers with the bill).
Whether the Roman Catholic Church -- the largest singular religious institution in our nation -- or other institutions are correct on contraception is a matter for their respective religious doctrines and is beyond the scope of this article. However, these institutions are on the most solid ground in objecting to the claim that others are entitled to contraception on the dime of devout believers who object on moral grounds to contraception. Under these circumstances, the Roman Catholic Church is rightfully taking a lead role in fighting the culture of the free ride, the culture of demanding an entitlement and passing off the obligations to fund it to others -- to the suckers -- within our society.
The reality -- what in Europe was commonly called realpolitick -- is that the Roman Catholic Church and other prominent religions are being punished for the audacity of asserting their primacy on issues of faith. Religious leaders recognize that holding firm on doctrinal issues comes with a price under the Obama Administration, which is making its intolerance for disobedience of the Federal Government well known. It is not an exaggeration to claim that the Obama Administration is pressuring faiths to conform their doctrine and practice to the arbitrary (and some argue, immoral) government policy, or otherwise suffer the pain of a government mandate. It is no longer an exaggeration to fear that the Obama Administration's dictates are the first wave of the persecution, by subjugation through regulation, of organized religion which refuses to modify faith-based doctrine to the demands of secular elected leaders.
Eric Dixon is a New York lawyer and strategic consultant who works with entrepreneurs, investment vehicles, political candidates and select individuals on a variety of legal, political, and investigative matters.