Grateful but Sobered by the Supreme Court’s Hobby Lobby Verdict

I have said before, and I will say it again that Obamacare’s contraception mandate forces one of the most egregious violations of religious liberty in our nation’s history. It forces pro-life business owners to pay for insurance plans that cover abortion-inducing birth control methods. For this reason, there was much at stake today in the Supreme Court’s Hobby Lobby decision.

That is why I breathed a sigh of relief when the Court ruled in favor of Hobby Lobby earlier today. In a narrow decision (5-4), the Court ruled that the federal government cannot run roughshod over the religious liberty of its citizens. In short, the Court found that the government must find the least restrictive means possible to advance the government’s compelling interest in providing free contraception to women. The Court’s majority said that the contraception mandate is in no way the “least restrictive means.” Not by a longshot. Because of this, the mandate runs afoul of the Religious Freedom Restoration Act (1993). And so the Court found that Hobby Lobby does not have to submit to this unjust and coercive mandate embedded in Obamacare.

I cannot overstate how grateful I am for this decision. The Court’s ruling today will have ripple effects for generations to come. Some of the initial analysis after the decision focused on the blow this decision delivers to President Obama’s administration. I agree with that assessment, but that is small potatoes compared to the bigger picture. This decision is much bigger than the politics of the moment. Long after President Obama is gone, this decision will still be seen as a landmark case protecting a robust definition of religious freedom. And if this broad definition is unclear to some, it is not unclear to Justice Kennedy who wrote an opinion concurring with the majority. He writes,

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief… It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

Against those who say that religious liberty ends at the front door of your church (a.k.a., freedom of worship), Kennedy agrees with the long tradition that says citizens must be free to practice their faith in their everyday lives (a.k.a., freedom of religion). In this case, the Court’s majority finds that the owners of Hobby Lobby should be free to run their business in a way that doesn’t implicate them in abortifacient birth control measures. Thus the Court has come down on the side of religious freedom, and this is an unmitigated good.

The troubling side to this decision, however, is that it was only a 5-4 decision. Only a bare majority of the justices acknowledged what would have been an egregious violation of our first freedom—religious liberty. The other four justices stood against this freedom, and they did so in a way that reflects the larger cultural divide in our country.

In her dissenting opinion, Justice Ginsburg agreed that the Green family’s “religious convictions regarding contraception are sincerely held” (p. 21). Nevertheless, she argues that their sincerely held beliefs are not a sufficient reason to find in their favor. For her, it doesn’t matter if their beliefs are sincere. The only thing that matters ultimately is whether or not the court thinks their consciences should be offended. In effect, Ginsburg, Kagan, Sotomayor, and Breyer believe that the job of the Supreme Court is to pass judgment on the religious views of the American public. In this case, they believe the Greens’s beliefs are flawed and can be dismissed as irrelevant. This is chilling.

It is sobering to think that a single vote could have swung this decision the other way. A single vote could have turned a triumph for our first freedom into a calamitous defeat. It is also sobering to realize that a growing number of Americans appear to have the same indifference toward religious liberty that the Court’s minority has. All of this indicates that this struggle is far from over. Nevertheless, today’s decision is a step in the right direction. Those of us who care about religious liberty will have to be vigilant if we want this progress to continue.

42 Responses to Grateful but Sobered by the Supreme Court’s Hobby Lobby Verdict

  1. Aaron A. Smith June 30, 2014 at 3:05 pm #

    I, too, am happy with the ruling. However, I think an individual is still responsible to choose his or her own behavior regardless of what is available or provided. I don’t think it’s the Supreme Court’s responsibility to uphold my values and actions. It’s mine.?

  2. buddyglass June 30, 2014 at 3:55 pm #

    Two thoughts/questions:

    1. Based solely on Denny’s summary it seems like the ruling hinges on the RFRA Which begs the question: what if a future congress repeals or significantly weakens the RRFA?

    2. Denny seems to suggest that sincerely held religious beliefs should always be respected by the government. Imagine the most abhorrent “sincerely held belief” someone might hold. Should that belief be respected by the federal government? If not, then what are the correct criteria to use when judging whether a given belief should be respected or “run rough shod over”?

    • Jane Dunn June 30, 2014 at 5:21 pm #

      Buddy — Yes, this was a decision based on the RFRA. Here is the standard (from the majority opinion):

      “RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§2000bb-1(a) , (b) (emphasis added).”

    • Chris Ryan June 30, 2014 at 9:05 pm #

      The problem w/ the ruling as Ginsberg pointed out is that the RFRA was never meant to apply to companies, just people. Literally, there’s no single mention of it applying to companies in the legislative history. This “right” appears out of thin air; literally invented by Alito et al. Only Mitt Romney and a few extreme Republicans think corporations are people. Now they have souls too apparently.

      • buddyglass June 30, 2014 at 11:17 pm #

        I think their logic is that when private corporations are “closely held”, as is the case for Hobby Lobby, a requirement on the corporation is a requirement on the individual(s) that lead it. That’s why they limited this ruling to only “closely held” corporations and not corporations in general.

      • Johnny Mason July 1, 2014 at 11:15 am #

        Chris, does the New York Times have the right to free speech? They are a corporation. Based on your reasoning, the government can shut down the NY Times because these rights only apply to people.

        Corporations have always been “people” when it comes to the law. This is established precedent going back hundreds of years. It’s why we can sue corporations, and why corporations can own property and have it protected, and why the New York Times can publish newspapers without fear of government action.

        • Jane Dunn July 1, 2014 at 12:43 pm #

          Corporations have long been considered “persons” for some purposes but not others. For example, corporations have some limits on their speech that do not apply to human beings. For example, commercial speech by a corporation can be regulated. That’s how government entities like the FDA and the CPSC can regulate advertising. The NY Times ability to speak freely is covered by both the rights to free speech and freedom of the press. It would have freedom of the press regardless of whether it was a “person” or not.

          Prior to the Hobby Lobby case, the Supreme Court had never held that a corporation can exercise religion.

          • Johnny Mason July 1, 2014 at 2:13 pm #

            From Alito’s opinion:

            “As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”

            So to claim that Hobby Lobby has no religious rights is to claim that the Green’s have no religious rights, and clearly the Green’s do.

            Another example is the idea of identifying businesses by race. We have laws in this country that subsidize and support minority owned businesses. Now a business is not black or white, it is a business, but we recognize that the business is made of its owners/stakeholders, and if those owners are a minority then they are eligible under this law.

            What we are really seeing here is not some disagreement with the law, but animus towards religious people, particularly Christians. The hatred we see isn’t about contraception or abortion, but about religion and ultimately about God.

            • Jane Dunn July 1, 2014 at 2:22 pm #

              It’s just not correct to say that “corporations have always been ‘people’ when it comes to the law.” I didn’t say Hobby Lobby doesn’t have religious rights. What I said was that the Hobby Lobby case is the first time the Supreme Court has held that a corporation has religious free exercise rights.

              Businesses are not designated as “minority” corporations. They are designated as “minority owned,” which has nothing to do with whether the corporation itself is a person since the designation is for the owner and not for the corporation.

              • Johnny Mason July 1, 2014 at 2:45 pm #

                “What I said was that the Hobby Lobby case is the first time the Supreme Court has held that a corporation has religious free exercise rights.”

                OK. That I agree with.

  3. Jane Dunn June 30, 2014 at 5:14 pm #

    “Ginsburg, Kagan, Sotomayor, and Breyer believe that the job of the Supreme Court is to pass judgment on the religious views of the American public. In this case, they believe the Greens’s views were not “substantial” and can be dismissed as irrelevant. This is chilling.”

    — No! You’ve misunderstood. The minority was talking about whether the HHS regulations amounted to a “substantial burden” on Hobby Lobby’s free exercise, not whether Hobby Lobby’s beliefs were “substantial.” Here’s what Justice Ginsburg actually said:

    “RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake.” — Ginsberg Dissent

    • Denny Burk June 30, 2014 at 5:15 pm #

      Right, which requires a prior judgment analyzing their beliefs. The majority disagreed and called them out on this.

      • Jane Dunn June 30, 2014 at 5:25 pm #

        But that’s not what your post says. The minority does **not** say Hobby Lobby’s beliefs are not substantial. It says the burden on their free exercise rights is not substantial. That’s two different things and there is no reason you need to misstate it.

        • Denny Burk June 30, 2014 at 9:33 pm #

          Jane, I have changed the wording in my post so that it reflects the language that Alito uses in his opinion (pp. 36-37). Thanks.

          • Jane Dunn June 30, 2014 at 11:18 pm #

            But you don’t make clear that you’re reporting how Justice Alito characterized the dissent. You make it sound like Justice Ginsberg actually said what you wrote. She didn’t.

            Plus, Justice Alito didn’t say Justice Ginsberg’s dissent said the Court could dismiss the Green’s beliefs as “irrelevant” or anything like that.

            • Denny Burk June 30, 2014 at 11:21 pm #

              We’ll have to agree to disagree. I’ll leave it to readers to decide if I’ve faithfully represented the opinions.

              • Jane Dunn July 1, 2014 at 12:07 am #

                I just don’t understand why you can’t acknowledge what the opinions actually say and **then** analyze what you think they mean. That’s what Justice Alito did. Just characterizing an opinion or statement without explaining what it’s based on is a misrepresentation by omission.

                • Ryan Davidson July 1, 2014 at 1:23 am #

                  I agree. The last couple of sentences of the penultimate paragraph are a pretty egregious misrepresentation of the argument made in the dissent. No fair reading of the dissent would suggest that the four justices in question “believe the Greens’s beliefs are flawed and can be dismissed as irrelevant.”

                  • Ian Shaw July 1, 2014 at 7:40 am #

                    No fair r4eading? That sounds like a no true scotsman argument…

                    • Rev. Prescott Jay Erwin July 1, 2014 at 10:22 am #

                      Okay, I wasn’t going to say anything, but NOW I’m offended: I’m a Scotsman and I don’t appreciate you playing the ethnicity card in this discussion! 🙂

                    • Ian Shaw July 2, 2014 at 11:02 am #

                      I am also a Scot. No offense intended

        • Rev. Prescott Jay Erwin July 1, 2014 at 11:02 am #

          Denny is correct. In Ginsberg’s own words, “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” the Court must determine 3 things: 1) are the plaintiffs’ allegations factual; 2) are the plaintiffs’ beliefs sincere; 3) are the plaintiffs’ beliefs of a religious nature. There are two counts on which the Court, according to Ginsberg, must analyze plaintiffs’ beliefs and then they must determine if the religious exercise of those beliefs is substantially burdened by the law. If the Court finds that the religious exercise of the plaintiffs’ beliefs is not substantially burdened, they’re saying that even if the plaintiffs’ beliefs are sincere and religious, they are irrelevant, not substantial enough to challenge the law.

          My problem with this ruling is that if a law is found to violate First Amendment rights — or any of the Amendments in the Bill of Rights — the law is therefore unconstitutional. This isn’t a matter of simply exempting some from that law on the grounds of the First Amendment. This law — or at least this provision in the law — must be removed. It cannot be maintained for those it doesn’t seem to bother.

          If this was applied to others in the Bill of Rights, like the Second Amendment, then any kind of gun laws could be passed and those claiming “substantial burden” — as determined by the Court — under the authority of the Second Amendment could be exempted from the law but all others would be subject to it.

          This provision in the so-called Affordable Care Act must be removed rather than simply exempting conscientious objectors.

          • Jane Dunn July 1, 2014 at 11:38 am #

            That’s just not what Justice Ginsberg said. She agreed that the Court must accept the plaintiff’s religious beliefs as sincere.

            Your analysis of the First Amendment is inapplicable because Hobby Lobby’s claim was brought under the Religious Freedom Restoration Act and not under the First Amendment.

  4. James Harold Thomas June 30, 2014 at 5:31 pm #

    Hobby Lobby pays a minimun of $14/hr for full time employees. This is $6.75/hr over the federal minimum wage of $7.25. Plan B costs about $50 out of pocket at Walgreens. In this situation, an otherwise minimum wage employee could afford about one Plan B “treatment” per workday on the EXTRA money that Hobby Lobby voluntarily pays them.

    • James Stanton June 30, 2014 at 6:00 pm #

      I don’t think this is about affordability of contraceptives.

      I’ve read several articles today by liberal writers renewing calls to decouple health insurance from the employer side. Oddly enough, there are also plenty of economic conservative arguments for this as well.

      • buddyglass June 30, 2014 at 10:21 pm #

        I’ve read several articles today by liberal writers renewing calls to decouple health insurance from the employer side. Oddly enough, there are also plenty of economic conservative arguments for this as well.

        I don’t anticipate this happening any time soon, but I’d like to see it happen.

  5. James Stanton June 30, 2014 at 5:47 pm #

    “In this case, the Court’s majority finds that the owners of Hobby Lobby should be free to run their business in a way that doesn’t implicate them in abortifacient birth control measures. Thus the Court has come down on the side of religious freedom, and this is an unmitigated good.”

    I agree with your conclusion here but I don’t agree with the premise that religious business owners would be implicated in decisions taken by employees. Just an echo of sins of the father being visited on the children to me.

  6. Jane Dunn June 30, 2014 at 6:26 pm #

    Here’s a good, plain English explanation if the decision. It IS possible to report accurately and without an agenda. http://www.scotusblog.com/2014/06/court-rules-in-favor-of-for-profit-corporations-but-how-broadly-in-plain-english/

  7. Paul Reed June 30, 2014 at 7:03 pm #

    WHAT A HAPPY DAY!!! I still can’t believe it. Praise God for his faithfulness!

    On another note, if I’ve ever been short or thoughtless to any member of this forum, I’d like to apologize. I’m truly happy to be a regular of this forum and greatly enjoy all of your daily company.

  8. Ryan Davidson June 30, 2014 at 7:55 pm #

    I agree that the result here is legally defensible. I’m not sure that your characterization of Justice Ginsberg’s dissent is accurate, however. It is a well reasoned, balanced dissent. Several points are worth noting.

    1. These protections apply only to closely held corporations. So, the ruling basically only applies to family-run small businesses. In arriving at this conclusion, the majority found that closely held corporations are different under the law than standard corporations (whose stock ownership is not closely held). And while Hobby Lobby benefited from such a distinction in this case, this is something of a double-edged sword. It also means that it will be more difficult for owners of such corporations to use the corporate form to insulate their personal wealth from the reach of the corporation’s creditors. So, this is far from a business-friendly result. I’m sure that big banks are throwing a big party right now, as it will be much easier to pierce the corporate veil against closely held corporations.

    2. The Court was also quite clear that the holding is largely limited to the facts of this case. Justices Alito and Kennedy made it clear that antidiscrimination laws are unaffected by this holding. Thus, wedding services providers will not be able to rely on this holding to avoid liability under laws that prevent discrimination based on things like sexual orientation.

    3. The government can cure the violation simply by expanding the existing accommodation provision (for religious nonprofits) to include religious closely-held for-profits. In that sense, employees of Hobby Lobby will actually see no difference in the availability of contraceptives. Hobby Lobby and Conestoga Wood will merely be excused from paying. On top of that, they’ll now have to spend tens of thousands of dollars preparing and filing the paperwork necessary to obtain the accommodation.

    I agree that the government’s position on this issue has been a bit hard to swallow. Even so, this is not a sweeping ruling. The government’s action was struck down on very narrow grounds that will have few implications beyond the situations where the government is seeking to regulate the terms of arm’s-length agreements between private parties.

    Regardless of what Becket and ADF are saying publicly, this is far from the result they were hoping for.

    • Jane Dunn June 30, 2014 at 11:48 pm #

      1. “So, the ruling basically only applies to family-run small businesses.”

      — No. Hobby Lobby is family run, but it is **not** “small.” It has more than 10,000 employees.

      2. ” It also means that it will be more difficult for owners of such corporations to use the corporate form to insulate their personal wealth from the reach of the corporation’s creditors.”

      — No, SCOTUS didn’t say or even hint about anything even close to that. Piercing the corporate veil is a matter of state law.

      3. “Thus, wedding services providers will not be able to rely on this holding to avoid liability under laws that prevent discrimination based on things like sexual orientation.”

      — No. The majority only made that point about racial discrimination in employment. It remains to be seen whether a business can claim an exemption from public accommodations laws. Plus, the federal RFRA does not apply to state laws and the federal government and most states have no protection for LGBT employees or customers.

      4. “they’ll now have to spend tens of thousands of dollars preparing and filing the paperwork necessary to obtain the accommodation.”

      — No. It’s a simple 2-page form.

      I agree with most of Justice Ginsberg’s dissent. Justice Kennedy said the dissent was “respectful and powerful.” I think it’s simply untrue to say, as Denny does, that the dissent shows an “indifference to religious liberty.”

      • Ryan Davidson July 1, 2014 at 1:07 am #

        @Jane

        1. I used the modifier “basically” because almost all closely held corporations are small family-run businesses. Hobby Lobby is not, but it is by no means typical of such businesses.

        2. Corporate form is entirely a matter of state law, and that was the basis of the Court’s distinction here. The Court held that there is a substantive legal difference between closely held corporations and other corporations. Namely, shareholders of closely held corporations can assert their religious liberties vicariously through the corporate entity. Well, that’s a two-way street. If the shareholders of closely held corporations can set aside the corporate veil for purposes of asserting the shareholders’ religious liberties, then surely creditors can set aside that same corporate veil to reach the financial assets of the corporation’s shareholders in their individual capacity.

        3. The last time I checked, racial discrimination in employment fell under the general category of antidiscrimination laws. I see no reason why statutory protections for gender minorities would receive any less deference than those same protections as applied to racial minorities. There are currently no federal statutory protections for gender minorities; that’s likely why Justice Alito referred to racial minorities.

        4. I suspect that the form(s) will be more complicated and that the regulations will be more onerous than those currently applicable to religious non-profits. Maybe I’m wrong, but I doubt that we’re going to end up with a mere two-page form.

        5. I too found Justice Ginsberg’s dissent to be well argued. This was a close question.

        • Jane Dunn July 1, 2014 at 2:14 am #

          @Ryan —

          1. The law ready exempts out businesses with 50 or fewer full time employees, so by definition it only applies to larger businesses.

          2. The Court didn’t base its holding on the legal distinction between a closely held corporation and non-closely held one. In fact, the Court said it didn’t have to reach the issue of non-closely held corporations because that question wasn’t before it and a corporation with lots of unrelated shareholders was, as a practical matter, unlikely to be able to agree on a religious purpose or practice.

          Corporate governance is almost ways a matter of state law, but corporate form can involve federal tax laws or federal securities laws. For example, a corporation can be organized as an S corporation for federal income tax purposes. Many small businesses are organized that way.

          The statutory interpretation of the federal RFRA has nothing to do with a state law question of piercing the corporate veil. In fact, I think Justice Alito’s opinion is more likely to be read as giving support to the corporate form since his opinion was clear that owners should not lose the protections of the corporate form just because they want to exercise their religious beliefs.

          3. You’re right that there are currently no protections in federal law for LGBT persons so there is no need for an exemption from federal laws for businesses that claim they cannot hire or serve LGBT folks. But, the level of scrutiny that laws receive that make or allow distinctions based on gender or LGBT etc identity or perceived identity is just not the same as it is for racial minorities. Given that the RFRA requires the government to establish a “compelling interest,” I see lots of ways a federal court could find that preventing the exclusion of women or LGBT folks is just not as “compelling” as preventing the exclusion of racial minorities. Justice Alito could have written that statement more broadly. It likely means something that he didn’t.

          4. SCOTUS said use the same accommodation HHS already gives to the religious non-profits. The form requires certification under oath. There’s not much else required.

          I think Justice Ginsberg may have somewhat overstated the breadth of the majority opinion, but I think you may be significantly understating it.

  9. Mike Aubrey June 30, 2014 at 8:45 pm #

    I agree that it was the right decision, but I’m also highly disturbed by the fact that the line of argument used by Hobby Lobby was grounded in Citizen’s United.

  10. Matt Martin June 30, 2014 at 9:31 pm #

    The irony of this is that Hobby Lobby employees will now commit actual abortions, all because of the wrongly perceived notion that the morning after pill is an abortion inducing drug. This doesn’t solve anything – it only contributes to the problem.

    • Brian Gaskin July 1, 2014 at 4:43 pm #

      If you feel life starts at conception then it is an abortion causing drug. Plan B’s own website says that it “It is also possible that this type of emergency birth control prevents implantation of a fertilized egg in the uterus by altering its lining.” That is abortion if you believe that life begins at conception. Which I believe is taught with in the Bible.

  11. buddyglass June 30, 2014 at 11:28 pm #

    Two good reads from the Volokh Conspiracy:

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/30/the-religious-freedom-restoration-act-and-complicity-in-sin/

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/30/what-comes-next-for-contraception-coverage/

    Second one goes into possible responses on the part of the administration to today’s ruling.

  12. Joseph Randall July 1, 2014 at 7:52 am #

    My guess is everyone commenting here, and the dissenting judges are very glad their parents didn’t use IUD’s to destroy them in their mothers’ wombs so that they could do all this debating and dissenting? Yes?

  13. Ryan Davidson July 1, 2014 at 10:20 pm #

    The link below provides a helpful discussion from a conservative who disagrees with the outcome. I think I’m largely on board with his thinking. Corporate form either means something or it doesn’t.

    http://bleedingheartlibertarians.com/2014/06/hobby-lobby-and-soylent-green/

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