Hobby Lobby Case Reemphasizes Weakness of the First Amendment Freedom of Religion

Each year, the Supreme Court waits until the end of its session to issue its most controversial opinions.  Most of these have to do with social issues as seen a year ago in United States v. Windsor.  Today was no different.

Hobby Lobby, and other religiously inclined businesses, won their case at the Supreme Court for religious freedom today.  At issue was Hobby Lobby’s resistance to a portion of Obamacare requiring employers to provide insurance plans to employees that include specific types of birth control.  The outcome is a narrow win for religious liberty, and a cautionary tale for future challenges.

The opinion of the Court (Justices Alito, Roberts, Scalia, Kennedy, & Thomas)

In a 5-4 decision the Supreme Court held that forcing Hobby Lobby to provided health insurance, including the objectionable contraceptive methods, violated the Religious Freedom Restoration Act [RFRA].  Corporations qualify as a person under the RFRA.

Concurrence (Justice Kennedy)

This is not the broad-based decision the dissenters claim it is.

Dissent (Justices Ginsburg, Sotomayor, Kagan, Breyer)

Corporations are not people under RFRA (dissent pages 13-20) (Justices Ginsburg and Sotomayor only), the impositions on religious freedom do not substantially burden Hobby Lobby (dissent pages 20-23), and that the contraceptive mandate is a compelling interest achieved by the least restrictive means (dissent pages 23-31).

Justice Ginsburg got to engage in hyperbole for the day “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” (dissent page 1).

Dissent (Justices Breyer and Kagan)

No decision is made under whether a corporation is a person under RFRA.

But isn’t this a First Amendment Case?

Religious freedom from government intrusion under the First Amendment was gutted in 1990 in the case of Employment Div. v. Smith.  In response, Congress enacted RFRA in 1993 in order to reinstate the balance in favor of religious freedom that existed prior to 1990.  RFRA applies to all federal laws, unless such new federal law specifically states that RFRA does not apply.  42 U.S.C. 2000bb-3.  If there were generally policy of including such exemptions in federal laws Congress could essentially ignore RFRA.

The scary part in a case like Hobby Lobby is that if this were a First amendment religious freedom case Hobby Lobby would have lost.  RFRA can be repealed at any time, and we would be left with a very limited and toothless protector of religious freedom under the First Amendment.

Bizarre side note on contraception v. abortion

Hobby Lobby opposed the coverage for Plan B, Ella, and two types of intrauterine devices only.  These four items are designed primarily to prevent implantation of a fertilized egg.  These are not designed to prevent fertilization, or release of an egg as most birth control do.  Apparently, under federal regulation “pregnancy” begins at implantation and not fertilization, as acknowledged by Justice Alito.  Opinion page 9 fn.7.  Obamacare does not require coverage for Mifepristone, the abortion pill.

Hobby Lobby opposed the four items and considered them abortifacients.