“A Decision of Startling Breadth”? Reflections on Hobby Lobby

This week’s Hobby Lobby decision from the Supreme Court brings good news and bad news. The good news is that the majority made the right decision, on sensible grounds, namely that the Religious Freedom Restoration Act (RFRA) should protect “closely held” businesses from acting against the dictates of conscience, especially when the government has not demonstrated that their policy is the “least restrictive means” to advance some compelling interest.

The HHS Mandate is so called because the Department of Health and Human Services – not Congress – crafted the mandate to require for-profit corporations (as well as religious non-profits like the Little Sisters of the Poor, whose challenge to the mandate is still pending) to provide contraceptive and abortifacient coverage to employees. Hobby Lobby has agreed to provide contraceptive coverage, but not for the few drugs that they regard as abortifacients. The court majority argued that they saw no reason why the government could not cover abortifacients itself, in order to avoid the showdown between compliance with the mandate and sincere religious concerns that brought this case before it.

The bad news is that this was a narrow decision (5-4) on narrow grounds. In her dissent, Justice Ruth Bader Ginsburg called it a decision of “startling breadth.” This is, frankly, a ridiculous statement, and it accounts for Justice Anthony Kennedy’s concurring opinion, which is largely intended to refute the notion that this decision has transformative implications.

Samuel Alito, writing for the majority, left open the possibility that the court could have decided differently under other scenarios. He mentioned examples such as companies that would deny coverage of blood transfusions or vaccinations on religious grounds, but noted that (in spite of the parade of horrible possibilities considered by HHS lawyers and the dissenting opinions), no one seems to have actually challenged the HHS Mandate on RFRA grounds except with regard to the abortifacient requirement. Alito also indicated that the court would not be inclined to protect racial discrimination cloaked in the rhetoric of religious conscience.

But as Alito noted, the HHS and Obama administration seem to believe that “no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers.” Alito and the majority affirmed a narrow scenario in which the deeply-held, long-term religious beliefs of family-run business owners are protected by the RFRA (and by the guarantee of “free exercise of religion” in the First Amendment). Other cases would have to stand on their own merits, but the key issue precipitated by the HHS Mandate is coverage of abortifacients.

The fact that four of the justices would not extend even such a modest grant of religious liberty is sobering. It reveals again why perhaps the most important issue in presidential politics is the question of Supreme Court appointments. The Supreme Court has assumed such overwhelming national, unilateral authority on issues such as religious liberty, that the switch of just one justice can reverse the status of a basic freedom in America today. This is not a good system, and one wishes that on this and many other issues we could return to an actual federal system in which states and localities had leeway to craft their own policies according to local sensibilities, instead of those of five unelected justices. But we are where we are.

For the moment, the Hobby Lobby decision represents a fragile consensus that religious liberty can, in certain limited cases, stand up in the face of national government power.

[See also Baylor president, Judge Ken Starr, on the significance of RFRA for the Hobby Lobby case.]

You can sign up here for my Thomas S. Kidd author newsletter. Each newsletter will update you on what’s happening in the world of American, a religious and political history, and current events. It will contain unique material available only to subscribers, and each will help you keep up with my blog posts, books, and other writings from around the web. [Your e-mail information will never be shared.] Thanks!

  • Shannon Menkveld

    You can be pretty sure that we will see this decision cited in future suits where the owners of the closely-held corporation are not Christians, and the employees on the other side are. (Yes, I know that the “other side” in this case was the government. It will not always be so.)

    I’ll be waiting for the Christian media to take up (and talk up) the non-Christian owner’s side.

    Of course, given the fact that the same organizations working to preserve the Mount Soledad cross here in San Diego were the ones raising a ruckus about “forcing Hinduism on our kids!!!!!” when a school district in this county started doing yoga in P.E. classes, I’m guessing that I’ll be waiting a long, long time.

    Oh, well… at least it’ll be fun to watch all the other shoes drop. Pass the popcorn, and can you grab me another beer out of the cooler?

    –Shannon

    • Andrew Dowling

      You nailed it Shannon. There will be a day in the not distance future when this happens, and the about face will take about 2 seconds when it does.

  • Sven2547

    He mentioned examples such as companies that would deny coverage of blood transfusions or vaccinations on religious grounds, but noted that … no one seems to have actually challenged the HHS Mandate on RFRA grounds except with regard to the abortifacient requirement.

    So that’s fine, then? Let’s just leave the door open through terrible judicial precedent?

  • Sven2547

    Alito and the majority affirmed a narrow scenario in which the deeply-held, long-term religious beliefs of family-run business owners are protected by the RFRA (and by the guarantee of “free exercise of religion” in the First Amendment)

    Uh no, actually, the Free Exercise Clause was not cited by the majority in this decision. Even they realize it could not possibly be interpreted to such an extreme.

  • kierkegaard71

    Actually, the Supreme Court as the locus of so much consternation is misplaced. Yes, the Justices are all nothing more than politicians in robes – adjudicating their preferences. I believe that none of them are due much respect. However, the greater reality and the reality that confronts Americans at a more sustained level is the presence of the regulatory state that has brought about this situation. Congress no longer legislates. They create agencies which have the power of legislation themselves. Thus, the Hobby Lobby case arises from an HHS-mandate, not a specific Congressionally legislated provision. Congress creates the behemoth, and lets it loose. So, the bigger problem is that the Court, and the Presidency, and Congress, and the American people, all accept the legitimacy of the unconstitutional, alphabetic maze of agencies that run this country day-to-day. We let this monster loose and then expect it to behave itself and respect our liberties. Right.

  • TheSquirrel
  • RustbeltRick

    On Monday, the decision appeared narrow. By Tuesday, the Supremes clarified the decision and sure enough, it is extremely broad. Ginsberg seems to be correct. http://www.latimes.com/business/hiltzik/la-fi-mh-expanded-hobby-lobby-20140702-column.html#page=1

  • Maine_Skeptic

    “…Justice Ruth Bader Ginsburg called it a decision of “startling breadth.” This is, frankly, a ridiculous statement…” Whether you agree with Justice Ginsberg or not, you’re not being honest to call her statement ridiculous. I’m not sure anyone can say with any kind of certainty what effect this decision is going to have in the near future.

    1. The court said “it’s job” in this case was to determine whether these were sincerely held beliefs by the owners of these “closely-held” companies. So SCOTUS now thinks it’s in the business of determining the sincerity of beliefs. And even if it was their job, they did a pathetic job in this case, since Hobby Lobby endorses companies that make the birth control pills they’re denying their employees.
    2. The justification for not requiring the company to pay for birth control was that the government would pay for it. What will be the court’s position when their allies in the Christian right make it illegal for the government to pay for birth control?

    3. The court offered no detail about what makes a clear and compelling state interest for blood transfusions and organ transplants but not these particular medications.
    4. The court allowed Hobby Lobby to define certain forms of birth control as abortions, against all science and logic.
    5. Once again, the court has given corporations human rights without human accountability. Corporations can now have religious exemptions from the law, but they can’t go to jail for the crimes they commit.

  • Grotoff

    “Abortifacient coverage”… and you wonder why you make such determined enemies. When you lie so confidently and comfortably, how can anyone trust you or your ilk?

  • RustbeltRick

    Another reason the Hobby Lobby ruling is going to have problematic implications — by allowing “family” and “company” to be so closely intertwined, you may now be on the hook for your company’s problems. Yikes. http://www.motherjones.com/mojo/2014/07/hobby-lobbys-other-problem


CLOSE | X

HIDE | X