Hobby Lobby: Your Thoughts, Ctd

The in-tray remains full of your insights. One reader writes:

Your first reader’s reaction – that it’s troubling the Court made a point to protect only an evangelical Christian belief – is really interesting. This whole case hinges on construing the Religious Freedom Restoration Act, and RFRA was a direct legislative response to very similar reasoning in Smith v. Oregon.

In that majority opinion, Justice Scalia said Smith had no constitutional right to exercise the religious practice in question (use of 1024px-Peyote_Cactuspeyote in a Native American ritual). Or rather, he said the state of Oregon’s interest in preventing abuse of peyote outweighed Smith’s religious freedom. He made a point of saying part of the balancing act was the fact that the religion Smith adhered to was not widely practiced, and therefore very few people’s religious rights were trammeled by Oregon’s law.

The dissent put the question to Scalia: what happens if a state outlaws use of sacramental wine in the interest of preventing alcohol abuse? Scalia’s explicit reply was: oh please, that will never happen because Catholicism, and other denominations, have so many adherents. Such a law could never be supported democratically, so the issue would never arise. He stood the Religion Clauses on their head; they weren’t there to protect religious minorities from the democratic will of “overweening majorities”; they were there to do just the opposite. Many, many people found that outrageous, and Congress (very much including Democrats) passed RFRA as a direct rebuke to Scalia’s opinion.

So, Hobby Lobby is now the second modern case I know of that singles out a widespread religious practice for protection, while denying it to similar practices of smaller faiths. And this case did it while being decided on the basis of legislation passed as an explicit disavowal of that first case. That’s a nifty bit of bendy logic to pull off, and a bit of a “fuck you” to the legislative branch.

Another reader reiterates the fair and important point that this was not about contraception as such, but contraception believed to be a form of abortion:

You stated: “The notion that the executive branch has the right in wartime to seize an American citizen and torture him into incoherence strikes me as a more important question than whether someone can have access to free contraception if her employers disapprove.”

What this ignores, and what most of the responses to the SCOTUS ruling on the Hobby Lobby case ignores, is that the thing that makes this more important to the religious right is that these people think the morning-after pill kills babies (and they believe this even of intrauterine devices); whereas the enemy who is tortured into incoherence is (1) still alive, in most cases, and (2) the corporate entity may be paying for it at a remove, but their taxes are not labeled as “for torturing prisoners.” I’m not defending their crazy views, mind you; but unless we realize that they really, really think this, and that’s what they’re upset about, I don’t see any way of effectively putting this to rest, the way we pretty much have done with blood transfusion refusers and snake handlers.

I hope at least some liberals grasp that being required to finance something you believe to be murder is a legitimate area of conscientious objection.