What Hobby Lobby Hath Wrought

In her dissenting opinion last June, Ruth Bader Ginsburg warned that the Hobby Lobby ruling would have far-reaching, unintended consequences. Others agreed. Looking at how the case has been applied in lower courts, Toobin argues that the Notorious RBG was right; the ruling is “opening the door for the religiously observant to claim privileges that are not available to anyone else”:

One such matter is Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. (The F.L.D.S. church is an exiled offshoot of the Mormon Church.) In the case, Vernon Steed, a leader of the F.L.D.S. church, refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. Applying Hobby Lobby, David Sam, a district-court judge in Utah, agreed with Steed, holding that his testimony would amount to a “substantial burden” on his religious beliefs—a standard used in Hobby Lobby—and excused him from testifying.

But Ilya Somin maintains that the court made the right call, and that denying constitutional rights to corporations would in fact be disastrous:

If we consistently apply the principle that corporations are not entitled to constitutional rights because they are not real people, then the government would be free to censor newspapers and TV stations that use the corporate form, including the New York Times and CNN. Similarly, it would be free to take corporate property without paying the “just compensation” required by the Fifth Amendment, or search it in ways that would otherwise be forbidden by the Fourth Amendment’s ban on unreasonable searches and seizures. It could also regulate or ban services at houses of worship owned by the many religious organizations that use the corporate form. CNN, the New York Times, and the Catholic Church are no more “real” persons than Hobby Lobby Stores is. …

Had the Court ruled that either corporations in general or for-profit ones specifically cannot “exercise religion,” it would have led to the gutting of legal protection for religious freedom in numerous commercial contexts.

Meanwhile, Dawinder Sidhu points to an upcoming case, Holt v. Hobbs, which “will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner”:

Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” …

If Hobby Lobby and federal law are faithfully applied, Holt should prevail. Prisoners surrender many of their rights at the prison gates. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” the Supreme Court wrote in Price v. Johnston more than 60 years ago. In 2000, however, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to help safeguard inmates’ religious freedom. The law states that the government may not place a substantial burden on a prisoner’s ability to practice his or her religion unless that burden is the “least-restrictive means” to achieve a “compelling” goal.