Opinion on the Hobby Lobby Decision: More Equal Than Others

By Jason Hines –

Today the Supreme Court ruled in a 5-4 decision that Hobby Lobby and other closely held corporations can refuse to cover certain forms of contraception in the insurance plans they provide to employees because of their “religious beliefs.” Now I put religious beliefs in quotes because despite the Court’s decision, I refuse to admit that corporations, created in order to separate themselves from the people who create them, can have religious beliefs. However, while I disagree with the Court’s decision, I can at least admit that it was (with one caveat) fairly decided. Courts generally, and the Supreme Court in particular, are called in to decide hard questions in difficult circumstances. The Court’s decision is logical based on what the law asked them to do. But just because it’s logical doesn’t mean it makes sense. Here are some other thoughts passing through my mind tonight after this decision.

• A word about that rationale – In its decision, the Court ruled in reference to the Religious Freedom Restoration Act (RFRA). This law, which had broad bipartisan support when it was passed in the wake of another Supreme Court decision, Oregon v. Smith (Smith) has three tests. First, the there must be a substantial burden to the person’s (or in this case corporation’s) exercise of religion.  The Court found a substantial burden. Second, the government action (the mandate) must be justified by a compelling state interest. The Court decided that providing contraception was a compelling state interest. The final test is that the government must use the least restrictive means to satisfy its compelling interest. There the Court found that the mandate was not the least restrictive means. Also, they tailored the decision very narrowly, saying that it only applied to closely held corporations and only in regards to the contraception mandate. They specifically mentioned that this rationale would not necessarily apply to Jehovah’s Witnesses who don’t want to provide blood transfusions or someone who says their religious beliefs mandate that they not provide vaccinations. They had good reason to come to that decision in this test. Religious non-profits do not provide contraception coverage and their insurers have to provide it at no extra cost to the employee or the company. Justice Kennedy in his concurrence raised the idea that if that was a problem then the least restrictive means could be that the government could provide the contraception at no cost to the employee. It seems to make a lot of sense actually. Except –

•  How can there be a substantial burden when you’re not actually providing the contraception? As stated in my previous post on this, Hobby Lobby is not providing contraception, and they don’t even own the insurance plan. The insurance plan is a part of the compensation that is given to the employee in return for the employee’s work. What the employee does with it afterwards is on them. Can Hobby Lobby now pay you less because you’ll spend their money on something that is against their religious beliefs? Also, what Hobby Lobby has provided is an option, not actual contraception. I find it hard to believe you have a substantial burden to your religious beliefs to provide your employees compensation for their work that includes options. Is it against Hobby Lobby’s religious beliefs to provide that option? I don’t recall anyone making that argument on their behalf.

• Isn’t government provision always the least restrictive means? I guess the Court couldn’t reach it because the facts haven’t come before them (yet), but the question still remains what happens when the insurer decides they don’t want to provide those forms of contraception either. Justice Kennedy would say that the government can provide it in those instances. But that opens the door for every religious objection to come in because anyone can argue that the government providing the medical service is always the least restrictive means of providing the service. The Court is not clear at all on why a Jehovah’s Witness can’t argue that the government should provide blood transfusions instead of their business because government provision is the least restrictive means of providing anything in these circumstances. That’s why I find it hard to believe that this is not going to lead to a slippery slope of religious objections. If I were cynical the fact that the Court tried to close the door of Pandora’s Box as it was opening it would make me wonder if this was really fairly decided or if we have the type of politicized, one-off decision we got in Bush v. Gore. On the positive side, I wonder if the hidden blessing of this decision is that so many cases will end up before the Court that we’ll end up with single payer government healthcare like we should have anyway.

• I’m beginning to think Scalia is doing this to me on purpose – Twenty-four years ago Justice Scalia wrote the opinion for the Smith case. Liberals and conservatives hated it. I hated it. (Yes, I had an opinion on Smith at the age of 10.) In the case, Scalia said that neutral laws of general applicability trumped free exercise. Scalia argued for the idea that anarchy would erupt if we just allowed people to ignore laws that were not enacted in order to specifically hamper religious beliefs. When the question was raised as to how religious minorities could protect themselves, Scalia had a simple answer – the legislature. Now I hated Smith because it was silly to suggest that Native Americans could ever have the political weight to change the law that outlawed peyote. Over the years though, I have come to respect Scalia’s fear of anarchy, especially as I have seen religious conservatives try to expand the notion of free exercise into uncharted waters. However, I need to know what changed in the last 24 years for Justice Scalia. Because today he just signed on to an opinion that has the potential to create the very anarchy he warned us against, and not once did I hear anyone suggest that Hobby Lobby should lobby to get the law changed. Man I dislike Scalia as a justice.

• Finally, Hobby Lobby isn’t the only religious actor here –  The most damning point to me, which I’ve seen only one other place mention in print, is that while some might argue that religious liberty was protected by the Court’s decision today, I would say Hobby Lobby’s religious liberty was protected only at the expense of the religious liberty of its employees. Just as Hobby Lobby’s owners have a religious belief in not using certain forms of contraception, Hobby Lobby’s employees also (potentially) have religious beliefs that allow them to use those same forms of contraception. The Court never effectively addresses why the religious freedom of the corporation is more important the religious freedom of the employees. The Court decided today that when those competing rights are in conflict, we will unburden the attenuated rights of a legal fiction before we protect the rights of all these actual people out here. I guess Orwell knew something when he said, “All animals are equal, but some animals are more equal than others.”

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