I explored yesterday’s decision in Burwell v Hobby Lobby in a guest post.
Here I expand on a few of the issues from that post.
The Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty. The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act. The same five justices have extended First Amendment speech rights to private corporations in campaign finance matters, the decision today broadly expands the power of corporations, in what truly is a legal fiction. Corporations do not profess religious beliefs. It is a farce to claim they do. This case is about advancing corporate power, not religious freedom.
It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court. I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty. Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision. And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest. It is an arts and crafts store, not a church. It is a corporation, not a person.
The Court went to great pains to make it clear that this was a narrow decision, that only dealt with the contraception mandate. It did not provide corporations with an exemption from other laws. The decision was also careful to use the words “closely-held” corporations, referring to privately-owned, and not publicly-traded corporations. Thus, if you work for General Motors, the corporation would not be free to claim a religious objection to the contraception mandate. Yet, it is a short leap from the logic that the Court uses to rule that corporations are people, to expand the decision to other corporations. That would be decided in future litigation, but Supreme Court decisions are interpreted by lower court judges, who will make the initial decisions as cases come to them.
Is today’s decision a serious setback to women’s rights? Yes, and no. On the one way, it is baffling to even be debating contraception in 2014. I thought that ship had, with the exception of some Roman Catholic Bishops, sailed long ago. Justice Ginsburg’s concerns are valid. But the decision is narrow; most Americans are not impacted by it. Of course if I were one of the 22,000 women employees of the two companies immediately at risk of losing coverage, it would not matter that most American’s coverage is not limited. I hope the Obama Administration take Justice Kennedy’s cue, and extends the same coverage that is being done for employees of non-profit religious organizations that have sought the exemption. Of course, this infuriates me that it is even necessary, but if it ensures full access to all women for basic reproductive health care, then I can live with it. This case proves the point that health care should not be tied in any way to employment.
Were I someone who actually steps foot in an “arts and crafts” store, I would be looking for a new place to shop. But that is a personal choice of an individual – an actual person who has full rights to speech, press, and free exercise of religion.