Justice Ginsburg Is Right: The Hobby Lobby Decision Sends the Courts into a Minefieldby
The U.S. Supreme Court ruling that for-profit companies like Hobby Lobby are free, because of religious objections, from the general requirement that employer insurance plans include coverage for birth control amounts to a radical redefinition of religious freedom. The court is essentially saying that women’s decisions about whether and when to have children are subject to the religious dictates of their employers. The religious or other personal beliefs of women themselves are secondary.
So what does this redefinition mean beyond the issue of birth control? Supreme Court Justice Ruth Bader Ginsburg, in a sharply worded dissent to the court’s 5-4 ruling, calls what lies ahead a “minefield” for the courts. (The Supreme Court’s decision and dissent are available here.) Indeed, it’s a grave threat to religious freedom because it puts our courts in the position of deciding which religious beliefs are favored over others.
The Hobby Lobby case throws open the door to for-profit corporations challenging generally applicable laws on a host of issues simply because of religiously grounded objections. Ginsburg notes such court cases in the past, including a restaurant’s refusal to serve black customers because the owner said his religious beliefs were opposed to integration. She points in another example to businesses owned by born-again Christians who have sought, because of their religious beliefs, to discriminate against single women, unmarried couples and “fornicators and homosexuals.”
Ginsburg writes (with quotes from other court cases):
Would RFRA [the Religious Freedom Restoration Act] require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases … would have to be evaluated on its own … apply[ing] the compelling interest-least restrictive alternative test.” Not much help there for the lower courts bound by today’s decision.
The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured into a minefield, by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.”
The Supreme Court’s Hobby Lobby decision is yet another example of why courts and judicial nominations are so important. This decision is not just a threat to women and their ability to access affordable contraception regardless of their income. The decision by the current majority on the Supreme Court takes the nation and the concept of religious freedom in a radical and dangerous direction that actually undermines rather than protects liberty and equality.