fbpx
Politics Foreign Affairs Culture Fellows Program

Religious Freedom Prevails In Narrow SCOTUS Vote

Hobby Lobby won a 5-4 decision. Here’s a link to the text of the majority opinion, written by Justice Alito, and joined by the court’s other three conservative justices, and Justice Kennedy, the swing voter whose libertarianism prevailed. I’ll post updates as the analysis comes in, but my cursory reading of the decision indicates that […]

Hobby Lobby won a 5-4 decision. Here’s a link to the text of the majority opinion, written by Justice Alito, and joined by the court’s other three conservative justices, and Justice Kennedy, the swing voter whose libertarianism prevailed. I’ll post updates as the analysis comes in, but my cursory reading of the decision indicates that it was fairly narrow and modest. The main points seem to be:

1. Under the Religious Freedom Restoration Act, corporations are defined as persons, because corporations apart from the persons who run them cannot exist. The “persons” definition in the law is to protect the people who own and run the corporation. Those persons, operating in the workplace as a corporation, have religious liberty.

2. The government did not show that the contraceptive mandate is the least restrictive way it could achieve its public policy goal of extending contraceptive coverage to all women, as the law requires. There are ways that the government could have guaranteed the contraceptive care of citizens without substantially burdening the religious liberty of these corporations.

3. The government already exempts many employers from the contraceptive mandate, including religious non-profits; it has shown no reasonable cause for why for-profit businesses should be denied this treatment. Moreover, the government already recognizes non-profit corporate entities as entitled to RFRA protection from the contraceptive mandate. There is no meaningful distinction regarding religious freedom between non-profit corporations and for-profit corporations.

4. This decision is very narrow; the majority opinion clearly states that it is not to be read as a loophole for any corporation to do whatever it wants to do and justify it on religious liberty grounds. Under this decision, the RFRA applies only to “closely held” for-profit corporations. “Closely held” means owned by a small number of people, not publicly traded. The opinion notes that there is not a single example of a publicly traded company seeking RFRA protection from the contraceptive mandate. To be perfectly clear, this decision explicitly covers only the contraceptive mandate. It is a narrow interpretation of the RFRA as it applies to Obamacare.

5. The government apparently believes that there are no medical procedures that corporations can opt out of providing insurance coverage for — including late-term abortion and assisted suicide. To punish companies who refuse to pay for these procedures is a substantial burden on them — and, says the Court, precisely the sort of thing the RFRA was intended to prevent.

6. The Court did not consider the First Amendment claims made by Hobby Lobby et al., because it found enough in the RFRA claim to make a ruling.

7. This isn’t part of the decision, but it’s important to note that Hobby Lobby and the other corporation in this lawsuit do not object to contraception per se, only to contraceptive methods their owners believe to be abortifacient.

UPDATE: Slate’s Amanda Marcotte, being as Slatey and Marcottish as she possibly can be:

That’s why I see this entire thing as something of an embarrassment for the religious right. Ever since the lawsuits began over the HHS contraception coverage mandate, the claim has been that the attacks are not about sex but about religion—which presumably has broader implications than simply resenting women’s sexual liberation. But this decision limits the employer’s religious reach exclusively to judgments about the employee’s personal use of her own vagina, and no further. “This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer’s religious beliefs,” Alito writes.

This feels like an extremely reductive view of religion: As simply a way to codify reactionary beliefs about human sexuality. Or, as Atrios put it on Twitter, “religion is now only about unapproved fu*king.” And it’s ultimately not good for the religious right to have one of its own—Alito—limit the scope of legitimate religious grousing to matters of sexuality, as if religion has nothing else going for it. Hobby Lobby may have won this battle. But it won at the price of portraying the Christian right as little more than a movement of sex-obsessed busybodies.

Where do you even start with this? The objection raised by Hobby Lobby and Conestoga to the HHS mandate was not about contraception per se, but about contraceptive methods they believe cause abortions. It’s not about sex, but about life and death. Marcotte and her minions may believe that sexual freedom is the absolute telos of all human endeavor, but more broad-minded liberals ought to recognize that compelling someone to underwrite what they believe is the taking of a human life is no small thing — especially when, as the Court majority put it, there are ways to provide the same kind of coverage for employees without forcing the employer to pay for it.

Nevertheless, I expect the Marcotte point of view to be the way the cultural left reads this decision. It makes it so much easier to understand the cultural left’s reaction to news like this if you ask yourself, “Is it good for the Religious Right?” If the answer is yes, then you may be assured that no matter what the merits of the case, and no matter what its complexities and trade-offs, it will be denounced as the Worst Thing In The World. The parody Twitter account Salondotcom gets it right:

 

 

The real Salon.com is scarcely less freaked-out.

Advertisement

Comments

Want to join the conversation?

Subscribe for as little as $5/mo to start commenting on Rod’s blog.

Join Now