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

“A Decision of Startling Breadth”? Reflections on Hobby Lobby July 1, 2014

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.]

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