Was Scalia's Inauguration Hat a Birth Control Mandate Protest?

Supreme Court Justice Antonin Scalia wore an unusual hat to President Barack Obama's Inauguration ceremony Monday. Some observers speculate that the hat symbolized religious conscience protections and was worn to protest efforts by the Obama administration to enforce a birth control mandate on religious groups.

Supreme Court Justice Antonin Scalia at President Barack Obama's inauguration, Jan. 21, 2013.
Supreme Court Justice Antonin Scalia at President Barack Obama's inauguration, Jan. 21, 2013. | (Photo: The Atlantic Wire)
Hans Holbein, the Younger painting of Sir Thomas More, 1527.
Hans Holbein, the Younger painting of Sir Thomas More, 1527. | (Photo: Hanz Holbein)

Kevin Walsh, associate professor of law at the University of Richmond School of Law, recognized the hat. It was a gift from the St. Thomas More Society of Richmond, Va. Designed to be a replica of a hat worn by St. Thomas More in a portrait by Hans Holbein, the Younger, it was presented to Scalia in November 2012, at the group's 27th annual Red Mass and dinner.

In a post for the First Things blog, "First Thoughts," Deputy Editor Matthew Schmitz suggested the possibility that the hat served a symbolic purpose. "Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will," Schmitz wrote.

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More was a councilor to England's King Henry VIII in the early 1500s. He was imprisoned due to his objections to Henry VIII's separation from the Catholic Church and his refusal to take an oath that disparaged the Catholic Church. His protests led to his death as he was found guilty of treason and decapitated.

The Obama administration has been in conflict with advocates of religious conscience protections since January 2012, when the Department of Health and Human Services issued a mandate requiring employers to cover contraception, sterilization and abortifacient drugs in their employer-provided health care plans. There have been over 40 lawsuits from private religious groups, such as colleges and service organizations, as well as for-profit companies that were founded upon religious principles, such as Hobby Lobby.

Scalia's own record on religious freedom is less than stellar under the view of some religious freedom advocates. Scalia, a Catholic, wrote the opinion for Employment Division vs. Smith (1989), which decided that a ban against the ceremonial use of peyote, a hallucinogenic drug, was not a violation of the First Amendment's Free Exercise clause. In reaction to that decision, Congress passed the Religious Freedom Protection Act and the Religious Land Use and Institutionalized Persons Act.

The Court has since shown, though, that it will show more deference to state-level laws, but federal laws will have a greater burden when demonstrating to courts that the federal government has used all means available to avoid violating an individual's religious conscience protections.

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