The Hobby Lobby decision has rightly aroused a great deal of commnet. Politically, this decision, together with the decision reached a few days earlier striking down Massachusetts limitations on the right of abortion protesters to confront patients on their way into clinics, suggests that our culture wars are going to continue for a long time, and that the victory of the Left is anything but assured. But constitutionally, in my opinion, the Hobby Lobby decision is both astonishingly novel and terrifying. Like the Heller decision that revised the meaning of the Second Amendment, Judge Alito's decision in this case redefines an essential American concept, freedom of religion. It does so in a way that will give religion literally unprecedented influence upon the operation of laws, and it does so, really, without any effective chain of reasoning whatever. Let me explain what I mean.
Alito purports to base his decision on the appallingly named Religious Freedom Restoration Act, passed in the early 1990s and signed, in a typical burst of conciliatory moderation, by Bill Clinton. That Act apparently was a response to a Supreme Court case, Employment Div., Dept. of Human Resources of Ore. v. Smith, in which certain Amerian Indians were both dismissed from their jobs and denied unemployment benefits for using peyote, an illegal drug, as part of their religious practice. Here are the key passages of this act.
Government shall not substantially burden a
person’s exercise of religion even if the burden results from a rule of
general applicability, except as provided in subsection (b) of this
Government may substantially burden a
person’s exercise of religion only if it demonstrates that application
of the burden to the person—
is in furtherance of a compelling governmental interest; and
is the least restrictive means of furthering that compelling governmental interest.
A person whose religious exercise has been
burdened in violation of this section may assert that violation as a
claim or defense in a judicial proceeding and obtain appropriate relief
against a government. Standing to assert a claim or defense under this
section shall be governed by the general rules of standing under article
III of the Constitution.
The act further defines "religious exercise" as follows:
The term “religious exercise” includes
any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.
The use, building, or conversion of
real property for the purpose of religious exercise shall be considered
to be religious exercise of the person or entity that uses or intends to
use the property for that purpose.
Now I have no objections of either of these passages as written, except to say that I do not think we needed them, since they really do no more than to elaborate on the text of the First Amendment to the Constitution. But that is because I regard an "exercise of religion" as something that an individual, family, or congregation, do, or refuse to do, themselves, because of their personal beliefs. They should not therefore be compelled to eat food that their religion prohibits, or open a store on what they regard as a sacred holy day, or denounce part of their church doctrine. Jehovah's witnesses have been allowed by the Supreme Court to refuse to salute the American flag in school based upon their beliefs. Young men have been exempted from military service because their religious training made them oppose all wars. To be sure, federal courts have ruled against parents who tried to deny their children essential medical treatment based upon their religious beliefs, but those are extreme situations which the new law also recognizes.
Yet the Hobby Lobby claim--and this, for me, is the key point--has nothing to do with the plaintiffs' exercise of their own religion. They do not believe in abortion or certain forms of birth control, which is their perfect right, but the government is not trying to force them to have abortions or have IUDs implanted. Instead, the government has required them (and other comparable businesses) to make health insurance available, and to include full contraceptive coverage (although not coverage for surgical abortions) in the plans they offer. What Hobby Lobby wanted to do was to make it harder for its employees to do anything in opposition to Hobby Lobby's own beliefs. That, in my opinion, is not the "free exercise of religion." It is the opposite: an attempt to impose their religious beliefs on others. And if that isn't unconstitutional under the First Amendment and a violation of all American traditions, then I don't know what is.
Yet astonishingly, Justice Alito, in his opinion, does not even provide any reasoning for endorsing this claim, but simply assumes its validity. Here is the key passage (the opinions may be read here
"In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions,they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives." The court, Alito continues, has to decide "whether the challenged HHS regulations substantially burden the exercise
of religion, and we hold that they do. The owners of the businesses
have religious objections to abortion, and according to their religious
beliefs the four contraceptive methods at issue are abortifacients. If
the owners comply with the HHS mandate, they believe theywill be
facilitating abortions, and if they do not comply,they will pay a very
heavy price—as much as $1.3 million per day, or about $475 million per
year, in the case of one of the companies. If these consequences do not
amount toa substantial burden, it is hard to see what would."
Thus, Alito and his four colleagues are arguing that no one can be compelled to cooperate in the administration of federal legislation whose effect is somehow contrary to their religious beliefs.
In exactly the same way, Quakers could easily claim exemption from all taxes collected to pay for wars, Jews and Muslims could object to any federal money spent to facilitate the manufacture, inspection and distribution of food products made from pork, and so on. Every American becomes the rightful judge of what laws he shall observe, based upon his religious belief.
Yet the whole point of the United States, child of the Enlightenment that it was, was to form a government based on reason, not religion. Alito and his brethren had imposed a scandalous revision of fundamental Constitutional law, and Providence alone knows where it wll end.
I had written the above paragraphs before I checked Justice Ginsburg's dissent, and to my great joy, she went right to the heart of this matter in her first two paragraphs. To my knowledge, however, the media has failed to pay much attention to what she said.
"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along withpartnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible withtheir sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always willbe whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1
"The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent."
That is not all. Justice Ginsburg then lays out the legislative history of the ACA with respect to the issue at hand. The initial bill did not
require that contraceptive services be covered, but Senator Barbara Mikulski introduced an amendment to do so, and it passed. As Justice Ginsburg initially noted, the court majority claimed a statutory, not a constitutional, basis for siding with Hobby Lobby. But it turns out that the Republicans tried to write Hobby Lobby's position into the law during the debate on the ACA--and Congress rejected their position.
"While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moralconvictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left healthcare decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers."
Ginsburg also makes clear from the legislative history that the Religious Freedom Restoration Act was designed merely to overturn the Smith
decision, and not
to create new, additional rights related to the exercise of religion. Alito's reasoning relied on the opposite assertion.
Justice Ginsburg's also dismisses the majority's incredible claim that since corporations have in some contexts been characterized as "persons," they can also be accorded the right to exercise religion.
"Until this litigation, no decision of this Court recognizeda for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether underthe Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise ofreligion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearlytwo centuries ago, a corporation is “an artificial being,invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part)."
Justice Ginsburg also shows at length that the majority's grant of religious rights to for-profit corporations is not only unprecedented, but flies in the face of distinctions between for-profit and religious corporations that have been made in Anglo-American law for centuries.
It seems to me clear that the Republican majority on the court, which has been carefully put together and nurtured for decades by a network of sitting justices (whose clerks often go on to great things), the Federalist Society, and right-wing think tanks, are engaged in an ongoing campaign of judicial activism designed to undo much of the law and governing philosophy of the last century. Chief Justice Roberts is among other things a clever politician, and he knows enough not to go too far too fast, as he showed when he declined on very narrow grounds to declare the Affordable Care 3unconstitutional, while denying Justice Ginsburg's overwhelming arguments that it passed muster on all counts. Yet the long-term trend is clear. It can be compared, it seems to me, to two other periods in the court's life. In the decades from the 1880s through the 1920s, when the Supreme Court repeatedly ruled against both federal and state power to regulate the economy in many ways, denied the rights of organized labor, allowed racial segregation, and declared a federal income tax unconstitutional. In the years 1934-6 the Court struck down a number of important New Deal laws, including the National Recovery Act, the Agricultural Adjustment Act, and the Guffey-Snyder Coal Act, which sought to regulate wages and hours in the coal industry. In 1937, however, after Roosevelt introduced legislation to increase its size, the Court majority shifted its course and let stand both the Wagner Act and the Social Security Act.
Of the two eras, sad to say, the Gilded Age looks much more similar to this one than the New Deal era. The Nine Old Men, as Drew Pearson and Robert Allen named them, were fighting a rear-guard action against progress. They were relics of a distant age. The Gilded Age judges, led by Chief Justice Fuller, were still "in the full force of life," as the French say, and confidently pushed free market ideas forward for a long time. The current court majority includes two members of the Silent generation, Judges Scalia and Kennedy (who has become more conservative of late), and three Boomers, two of whom are only in late middle age. If a Republican President gets to make the next Supreme Court appointment, their views will dominate for another ten years at least.
The greater ruthlessness of Republicans, who want to return us to the Gilded Age, than Democrats, who are meek defenders of parts of the inherited status quo, is one of the main reasons for the victories they have won for their policy agenda. The Republicans began their ascendancy, after all, by stealing the presidential election of 2000, and they continue to use every advantage they can find both to block Democratic agendas and to advance their own. This decision is another such step forward for them, and to the extent that it does indeed create chaos in the administration of federal laws, it will help them still further. The battle for the future of the US is still going on.