So much noise, so little substance: life after Hobby Lobby

One hates to be the skunk at the garden party, but that’s the position in which I find myself. The Supreme Court’s Hobby Lobby decision was a relief. That’s it. It isn’t worth having a party over. I wish it were.

The Twitterverse would have you believe otherwise. So would the flood of advocacy emails now filling my email inbox. One side thinks the decision is a terrible danger to women (though not to female business owners, somehow). The other side says it’s a smackdown to Obamacare, a ringing affirmation of the First Amendment, and an all-around win for the forces of truth and justice.

All this fuss and bother, just because five Justices (and only five) agreed that a boss in a closely-held private company may not be compelled to help pay for or procure an employee’s abortion-inducing “birth control.” This is a limited decision – appallingly limited.

Let’s all settle down and read the decision, shall we? As usual with end-of-term Supreme Court decisions, this issue is too important to leave to the lawyers.

What the Court’s majority said:

  • This is no landmark First Amendment case. This decision is based on two statutes: the Religious Freedom Restoration Act of 1993 and a follow-up law, RLUIPA, that Congress passed in 2000.
  • “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.” (Justice Alito writing for the majority)
  • “Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns [other parties to the case].” (Emphasis added.)
  • “By enacting RFRA, Congress went far beyond what this Court has [earlier] held is constitutionally required.”
  • Corporations have the same rights as individual persons for purposes of protection under RFRA. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga , and Mardel protects the religious liberty of the humans who own and control those companies.”
  • RFRA means that if the federal government has a compelling interest in a policy, and that policy raises religious-liberty issues for someone, the government must use the “least restrictive means” of furthering its interest. In the Hobby Lobby cases, the government has failed to show that the contraceptive mandate is the least restrictive way of promoting its interest in giving women “cost-free” access to the four contraceptive methods to which the owners of Hobby Lobby have religious objections.
  • “We will assume that the interest in guaranteeing cost-free access … is compelling within the meaning of RFRA…”
  • This decision does not apply to publicly-traded corporations or to nonprofits.
  • The federal government can pay for contraception without having to involve employers.

What the majority did not say:

The majority did not address the issue of whether the federal government is correct in making a public-health priority out of the suppression of women’s fertility. It did not give a blanket exemption to anyone who has religious objections to contraception and abortion. It addressed the plaintiff’s concerns over four particular abortifacient drugs and devices without addressing potential objections to other forms of birth control. It did not say the government has no business meddling in birth control (quite the contrary, in fact). It did not hold out hope that the Hobby Lobby reasoning would apply to larger, publicly-held corporations. It did not recognize that the mandate’s “accommodations” to religious entities are a joke. Maybe that will have to wait for the Little Sisters of the Poor case.

Justice Samuel Alito wrote the majority decision, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

What the minority said:

Justice Ruth Bader Ginsburg wrote a strong dissent, joined by Justices Sotomayor, Breyer and Kagan. That’s four, which is one vote away from five. Think about that as you consider who you want in the U.S. Senate, voting on confirmation of the next nominees to the Court.

Unlike the majority, Ginsburg was willing to bring the First Amendment right into the middle of the discussion, so that she could give it a clear dismissal. She calls the companies’ Constitution-based Free Exercise claims not tenable, where Alito considered them merely irrelevant (relying instead on RFRA).

“The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure. …In sum, with respect to free exercise claims no less than free speech claims, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ … I would confine religious exemptions under [RFRA] to organizations formed ‘for a religious purpose,’ ‘engaged primarily in carrying out that religious purpose,’ and not ‘engaged …substantially in the exchange of goods and services for money beyond nominal amounts.’” [Emphasis added.]

Enough for today, but watch out for future mandate cases

Much remains to be said, but for now, all I can conclude is that the decision could have been much, much worse. Dozens of more challenges to the mandate are in the federal courts now. Some are from for-profit companies. Many more are from non-profits that the Supreme Court might or might not decide are “religious” enough. Let’s hope Justice Ginsburg doesn’t write for the majority when those cases are decided.

2 thoughts on “So much noise, so little substance: life after Hobby Lobby”

  1. You go on being the skunk, Ellen. We need to remember to temper our enthusiasm with analytical research…we need your voice – just the way it is. Thank you.

    1. Thanks, Charlotte. As someone who has been employed by advocacy organizations, I understand very well the imperative of striking while the iron’s hot in order to encourage donations & give the media an “I won!!” statement. Even so, I was embarrassed by some of yesterday’s responses from national pro-life groups. This was NOT a First Amendment victory, and as soon as the abortion advocates calm down for a minute, they’ll see that Congress can easily undo this decision. Interesting times we live in!

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