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Hobby Lobby, Liberty, Empathy, and Dignity

7:01 AM, Jul 1, 2014 • By ADAM J. WHITE
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Similarly, the dissenters shrug off the penalties and burdens that employers bear under the HHS mandate. The plaintiffs' objections to funding abortifacient contraceptives are, to the dissent, “too attenuated to rank as substantial." And HHS's requirement that the companies either pay for the contraceptive coverage or incur hundreds of millions of dollars in fees are, to the dissent, “no command that Hobby Lobby or Conestoga purchase or provide the contraceptives,” but rather, merely “calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive plans.” Those glib characterizations of the case reflect a stark lack of—let's just say it—“empathy” among the dissenting justices.

Empathy is also lacking in the dissent's aforementioned dismissal of the religious, moral, or ethical motives of for-profit corporations. The justices assume that private companies and their owners are motivated exclusively by dollars and cents: ”Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” One wonders if these justices have ever encountered small business owners, or even large business owners, in their own lives. Yes, profits are the primary goal of private corporations -- but they are hardly the only goal. (By the same token, the dissent breezily assumes that nonprofit corporations are motivated only by altruistic objectives—an equally naive assertion that is readily disprovable by more than a few nonprofits.)

Justice Alito's opinion for the Court, and Justice Ginsburg's opinion in dissent, were not the only important statements in Monday's case. Justice Kennedy joined the majority opinion in full but also wrote separately to stress the real stakes of the case. Not the dangers of over-delegation, as I wondered after oral argument, but the importance of “dignity”—specifically, the dignity of business owners and companies that were being denied accommodations, despite their deeply held and sincere religious beliefs, while so many other interests were being accommodated by the administration. Kennedy sees this—albeit with his usual rhetorical flair—as a violation of basic “dignity,” and even as “demeaning”: 

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. … 

“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means.

Kennedy's opinion must be put in context. Perhaps the most significant constitutional law book on the market right now is The Civil Rights Revolution, the belated third volume of Yale law professor Bruce Ackerman's hugely influential We the People series. The heart of Ackerman's argument is that the Supreme Court's defense of civil liberties, from Brown v. Board of Education and other cases, was largely a defense of human dignity—a stand against institutionalized “humiliation” of persecuted minorities. Racial segregation's deepest harm wasn't to young African-American students' education—it was to their dignity, amidst the South's institutionalized humiliation of the persecuted minority.

Ackerman is advancing this particular account of history at this particular moment in time because he sees it as a crucial argument against modern state limits on same-sex marriage. He's not alone, as others in the academy and in the federal courts (both lawyers and judges) are adopting his arguments and rhetoric. And not just on the left—professor Josh Blackman is pursuing an argument of dignity and civil rights, too, from a conservative-libertarian direction. 

Ackerman's approach may well resonate among the justices, especially Justice Kennedy, when same-sex marriage cases return to the high court. But I suspect that Ackerman and others were less aware of the fact that this argument works not just for same-sex marriage, or other rights that Ackerman and others support, but also for religious liberty. The administration's conduct made it difficult, if not impossible, to see the HHS mandate as anything other than an utterly gratuitous attack on the sincerely held beliefs of religious Americans, an opportunity to single out, humiliate, and burden religious minorities seen as increasingly out-of-step with the arc of history. 

Even now, Ackerman and others on the left might deny that Hobby Lobby was a case about religious believers' dignity. I could suggest that this reflects their own lack of “situation-sense,” to borrow Ackerman's preferred term. The right to freely exercise religion is a civil right, too, even if it doesn't fit in Ackerman's “civil rights revolution.” But the key is not what I think (nor what Ackerman thinks), but what Justice Kennedy thinks—and he clearly saw the threat to religious believers' “dignity” here. 

Kennedy's focus on “dignity” may prove to be the heart of the seemingly inevitable collision between the Religious Freedom Restoration Act and same-sex marriage, a collision that Ginsburg's dissent expressly identifies as the latest iteration of prior efforts to use religion as a cover for racism and sexism. Same-sex couples seek to hire photographers, bakers, and other services for their weddings; more than a few of those service providers decline to do business with them, based on their religious objections to same-sex marriage. Litigation ensues, brought either by the couple to punish the company for refusing to do business with them, or by the company to challenge laws that would force them to do business with the couple. No matter how the litigation arises, the case raises serious “dignity” concerns on both sides of the courtroom.  

In Hobby Lobby, Justice Kennedy believed that the dignity of both sides, the employers and the contraception-seeking employees, could be vindicated by giving these companies the same accommodations enjoyed by other groups, or through federal fiscal support for this new entitlement program. But how will he strike the balance in the same-sex marriage cases? A year from now, we may well know. 

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