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Hobby Lobby, Liberty, Empathy, and Dignity

7:01 AM, Jul 1, 2014 • By ADAM J. WHITE
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The second question before the Court was whether the administration's contraception mandate “substantially burdens” the companies' and owners’ exercise of religion. Here, too, the Court answered “yes.” The mandate requires employers either to financially support abortifacient contraception, in violation of the owners' and companies' religious beliefs, or to pay nearly $500 million in annual fees, or to simply drop employee health coverage altogether and send employees to the HHS exchanges (which would itself impose costs on the companies and owners, in terms of HHS fees and competitive disadvantages as the companies try to recruit employees). 

The third and final question for the Court was whether the mandate was the least burdensome way for the government to achieve its aims, or whether the government could achieve its aims through less burdensome means. (The Court assumed, for present purposes, that the government's aims were sufficiently compelling, a standard imposed by the Religious Freedom Restoration Act.) Here, too, the Court saw a clear answer: the mandate was not the least restrictive means, because the government could give these companies the same accommodations that are given to nonprofit corporations: to opt out of the mandate, leaving the insurance companies to pay for the employees' coverage. Or, for that matter, Congress could pay for this giant new entitlement program itself.

The Court's analysis of this point is informed, implicitly if not explicitly, by the administration's seemingly arbitrary and politicized implementation of Obamacare. As the Court notes, no shortage of companies and organizations enjoy opt-outs and exemptions from this mandate and other requirements of the law. In light of that track record, HHS strains credulity when it asserts that this mandate absolutely must be imposed on these particular persons. As law professor Jason Mazzone observes, much of the Court's opinion reads as a defense of the Constitution's separation of powers, bringing rogue regulators to heel under the rule of law: “I recognize of course that not everyone will agree that deference to Congress warrants today's outcome” writes Mazzone, “but rarely has the Supreme Court so thoroughly trounced an agency's interpretation of congressional directive.”

Justice Ginsburg wrote the opinion for the dissent—no surprise, given Ginsburg's attention to issues of abortion specifically, and liberal feminist causes more generally. (Recall that the dissenting opinion for which she is perhaps most famous was in the Lily Ledbetter pay-equality case.) In her Hobby Lobby dissent, she disagreed up and down with each of the Court's aforementioned conclusions, and in all of that a few points stand out.

First, the dissent makes a surprisingly bold prediction—namely, that the Court's recognition of these two companies' religious beliefs will result in a flood of anti-regulatory sham litigation brought by other corporations. “Little doubt that RFRA claims will proliferate,” Justices Ginsburg and Sotomayor assert, “for the Court's expansive notion of corporate personhood—combined with other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” Color me skeptical, to say the least. The courts are well-equipped to thwart spurious lawsuits alleging phony religious beliefs, and corporations know better than to venture sham litigation under the banner of religious liberty. 

Second, Justice Ginsburg and the other dissenters' characterization of religious belief and believers is stark and, frankly, disturbing. In outlining the sorts of religious “exemptions” that could proliferate, the dissenters begin first with a fifty-year-old case of racial discrimination, and then a thirty-year-old case of discrimination against unmarried women. Do the dissenting justices actually see those lawsuits as reflecting serious religious arguments of our time (or even of the time when the cases arose)? They seem to define religion in America by reference to society's basest impulses, rather than the vast mainstream of religious Americans, let alone its best exemplars.

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