Perspective, Please, Ctd

A reader writes:

Count me with you in the sanguine camp about the Hobby Lobby ruling. The hysteria over this decision baffles me, though perhaps it shouldn’t – it’s extremely easy for the media to place what happened in the context of pre-existing narratives like the “War on Women” or the nasty bigotry of the religious right than to sift through and explain complex legal reasoning. At any rate, it’s worth pointing out that most of the dissents featured here are factually wrong.

To explain why, let’s turn to Eugene Volokh’s “plain English” rendering of the majority’s decision, which might be the most helpful single explanation of what happened. The entire piece (and it’s not long) should be read, but his final point is this:

Supreme Court Issues Rulings, Including Hobby Lobby ACA Contraception Mandate CaseWhen both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated. But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.

So, let’s take a deep breath and walk through this. The reader who claimed that this decision means that “only the religious views of abortion opponents count” is wrong. They counted here because those were the people asking for an exemption. Other types of exemptions will stand or fall on their own merits, and will depend in part on how difficult (or not) such requests are to accommodate. Proceeding in this fashion is what the Religious Freedom Restoration Act requires.

This leads to a second point. Your reader who compared this to the Lawrence decision could not be more off the mark.

That case dealt with matters of constitutional interpretation – it established a precedent in the fullest sense of the term by saying what liberty and privacy meant under the Due Process Clause of the 14th Amendment. As such, its impact really has been sweeping, because when you say what the Constitution means, you provide a standard against which to judge any particular federal or state law. The Hobby Lobby case, on the other hand, dealt with a statutory question – interpreting a law passed by Congress. It makes no big claims about the meaning of religious liberty, or what the First Amendment demands in situations like Hobby Lobby’s. If Congress repealed the RFRA tomorrow, the basis for this exemption would be removed.

Similarly, the reader who panicked that Alito “didn’t actually shut the door on another closely held company making an RFRA claim that mandatory coverage of blood transfusions or vaccines abridges religious freedom” doesn’t know what he or she is saying. Alito couldn’t do that, because, again, the RFRA requires the courts, as Volokh put it, to “sort through religious exemption requests” as they are made. Without the facts of those possible exemption requests, the Court really can’t say much about them. In the future, closely held companies can ask for whatever exemption they want – how you could forbid exemption requests, ahead of time, from simply being made is beyond me – and those requests, again, will be dealt with at that time according to the particulars involved, from the nature of the burden imposed to the reasonableness of the accommodation sought.

I’m convinced most of the people wetting themselves over this decision are doing so because, in their ignorance, they assume all SCOTUS decisions are like Lawrence or Windsor or some other “big” decisions on hot button issues that render a judgment on what the Constitution means. Hobby Lobby was not that type of decision.

Another reader:

Some of the comments regarding the Hobby Lobby decision seem to be driven a bit by emotion and ideology than a understanding of precedent. One reader wrote:

In that majority opinion, Justice Scalia said Smith had no constitutional right to exercise the religious practice in question (use of peyote 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.

That’s not the best way to characterize the decision of the Court in Smith v. Oregon.  The litigants in the case were denied unemployment benefits because they were fired from their jobs as drug counselors for the use of peyote in religious ceremonies.  Because they were fired for job-related misconduct, they couldn’t collect the benefits.  The Court held that this generally applicable law would not consider an exception for this religious practice.

Scalia and the Court resurrected what is often called the belief action distinction or dichotomy. Simply, this means that the First Amendment allows individuals to believe what they wish.  But religious activities could be regulated as long as the regulation was neutrally applied.  So the Court did not declare they litigants had no right to exercise the religious practice in question.  They just couldn’t collect unemployment benefits.

Now you can certainly argue that “neutral” laws might prove disadvantageous for minority groups.  But if RFRA had not been passed by Congress as a remedy to this decision, you would need only to apply the Court reasoning in Smith.  Was the ACA a neutrally drafted law?  Likely the Court would have rules yes – the ACA was not passed to force devout Christians who abhor abortion to allow contraceptive practices that seem to promote the end of fetal life.  Hence, Hobby Lobby may have lost today (if of course the Court was consistent).  Hobby Lobby would not have been granted an exception to a neutral law.

But RFRA was passed by Congress to allow for the devout to avoid having to follow general laws of neutral applicability.  RFRA demands that the Court evaluate whether there  has been a substantial burden on the Free Exercise of religion.  If the answer is yes, Congress needs to demonstrate a compelling justification for the burden that is narrowly tailored.  Alito suggested that there was a compelling justification.  But then he argued that the ACA did not use the least restrictive means (narrow tailoring) to fulfill the compelling interest.  Remember, the Court noted that if the federal government wants to provide the benefits, it can.  In that regard, Hobby Lobby still loses. Also remember, the Court was conducting statutory interpretation here – not constitutional interpretation.

The other issue to keep in mind is that in recent years, the Court applied the Free Exercise clause to protect minority religions at the hands of minorities, including Santarians and those who import hallucinogenic for religious ceremonies.

(Photo: Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced June 30, 2014 in Washington, DC. The high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. By Chip Somodevilla/Getty Images)