More Equal Than Others – Jason Hines

Before looking ahead to religion issues on the Supreme Court’s plate this year, it is important to look back at the most important thing that happened in religious liberty on the Court last year.  Last June, Hobby Lobby won a case in which it argued that closely held corporations should be able to control health insurance contraceptive options for their employees if those options are against the corporation owners religious beliefs. Despite the fact that the Court fairly decided the case, there are some issues and concerns with the decision that should be highlighted from a religious liberty perspective. It seems at the very least problematic that corporations, intended to be legal fictions that separated the owners from the business itself, now have the ability to control matters of conscience for their employees according to the religious sensibilities of the owners. But I give the Supreme Court credit – cases of this manner are difficult, with a series of complex legal issues. Although many might disagree with the decision, that does not mean that the Court’s rationale did not have some merit, based on how the case was presented.  However, here are a few things to consider about this case and how it effects religious liberty in this country.

The Hobby Lobby decision is founded in a piece of legislation called the Religious Freedom Restoration Act (RFRA). This law, was passed in response to Oregon v. Smith (Smith) and has three tests. First, the there must be a substantial burden to the person’s (or in this case corporation’s) exercise of religion. Second, the government action (the mandate) must be justified by a compelling state interest. The final test is that the government must use the least restrictive means to satisfy its compelling interest. The Court found a substantial burden, and that providing contraception was a compelling state interest. But the Court found that the mandate was not the least restrictive means. Also, they tailored the decision very narrowly, saying that it only applied to closely held corporations and only in regards to the contraception mandate. They specifically mentioned that this rationale would not necessarily apply to other religions and other medical issues. They had good reason to come to that decision in this test. Religious non-profits do not provide contraception coverage and their insurers have to provide it at no extra cost to the employee or the company. Justice Kennedy in his concurrence raised the idea that if that was a problem then the least restrictive means could be that the government could provide the contraception at no cost to the employee. It seems to make a lot of sense actually.

But the Court never seems to consider that the government providing the service would always be the least restrictive means. The Court probably didn’t reach the issue because it was not presented to them, but the question still remains what happens when the insurer wants to act like the Hobby Lobby and not provide the contraceptive services because of the religious beliefs of the owners of those companies. I guess Justice Kennedy would respond that the government can provide it in those instances as well. But if that happens then the door is open to every potential service being provided by the government whenever there is a religious objection. Moreover, the Court does not really explain why this decision only works for the owners of Hobby Lobby and not for other faiths for which this logic would apply. That’s why I find it hard to believe that this is not going to lead to a slippery slope of religious objections. If I were cynical the fact that the Court tried to close the door of Pandora’s Box as it was opening it would make me wonder if this was really fairly decided or if we have the type of politicized, one-off decision we got in Bush v. Gore.

Earlier this week we talked about the case of Oregon v. Smith. Justice Scalis wrote the opinion in that case twenty-five years ago. Both liberals and conservatives hated the opinion. In the case, Scalia said that neutral laws of general applicability trumped free exercise. Scalia argued for the idea that anarchy would erupt if people could ignore laws that were duly passed simply because they had a religious belief that called for them to break the law. When the question was raised as to how religious minorities could protect themselves, Scalia had a simple answer – the legislature. Although the opinion was widely disputed at the time, I have come to respect Scalia’s fear of anarchy, especially as religious conservatives try to expand the notion of free exercise into uncharted waters. It just seems odd that Scalia would now support a decision that gives a religious exemption to a neutral law with general applicability.

Finally, the aspect of the Hobby Lobby decision that is the most worrisome is that the owners of Hobby Lobby aren’t the only religious actor here. Unfortunately, the Hobby Lobby decision protects Hobby Lobby’s religious liberty only at the expense of the religious liberty of its employees. There seems to be no concern for the religious liberty of the employees in the face of the corporation It is possible for Hobby Lobby’s employees to have religious beliefs that allow for the use of contraception, just like the owner’s of Hobby Lobby have their religious beliefs. The Court never effectively addresses why the religious freedom of the corporation is more important than the religious freedom of the employees. Somehow the rights of something that only exists intangibly ended up with a stronger claim to religious freedom than several thousand living breathing human beings. The Court decided that when those competing rights are in conflict, the attenuated rights of a legal fiction should be unburdened before we protect the rights of actual people.

Jason Hines is an attorney with a PhD in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at http://thehinesight.blogspot.com