In Hobby Lobby, Court Rules Some Beliefs Are More Equal Than Others

By Daily Editorials

July 1, 2014 5 min read

A fair place to begin deconstructing the Supreme Court's decision Monday in Burwell v. Hobby Lobby would be with the people most directly and immediately affected — the women of child-bearing age who are among the 13,000 full-time employees of Hobby Lobby's 560 arts and crafts stores.

They will lose insurance coverage under the terms of the Affordable Care Act for the four forms of birth control to which David Green and his family, the chain's owners, have religious objections. Those are the Plan B and Ella "morning after pills" and hormonal and copper intrauterine devices. The Greens believe they prevent pregnancy by causing spontaneous abortions.

There is no way to know how many of the women of Hobby Lobby would choose those forms of birth control if they had the choice. The Guttmacher Institute, a reproductive rights organization that filed a brief in support of the Department of Health and Human services, says a large percentage of women who can't afford the $1,000-a-year cost of IUDs would choose them if given the choice. The institute further argues that the science behind the IUDs and morning-after pills is clear that they don't disrupt pregnancies that already have occurred.

Today the women of Hobby Lobby. Tomorrow women and men of many and varied beliefs everywhere. Because this decision will echo far beyond the potpourri-scented aisles at Hobby Lobby.

— For the first time, the Supreme Court has ruled that for-profit companies — at least closely-held companies where the owners are directly involved in managing the business — can hold religious views protected by the First Amendment. In its 2010 ruling in Citizens United v. FEC, the Court granted First Amendment personhood to corporations seeking to make political contributions. In Richmond, Va., John Marshall, the fourth and perhaps greatest chief justice of the United States, is spinning in his grave. A corporation, he wrote in 1819, "is an artificial being, invisible, intangible, and existing only in contemplation of law." So much for the Founders.

— Justice Samuel Alito, writing for the court's five-member conservative bloc, may have sent shivers down the backs of conservatives by suggesting that government should require insurance companies to pick up the tab when corporate persons won't. Alternately, he wrote, government can pick up the tab itself. Justice Alito would thus extend to for-profit companies what the Obama administration has already extended to religious organizations and religiously-affiliated not-for-profits. Welcome, Justice Alito, to the ranks of those who believe in a single-payer national health plan.

— The Supreme Court has decided that the rights of free exercise of religion held by corporate citizens can preempt the beliefs of employees. In her blistering dissent, Justice Ruth Bader Ginsburg referenced a 1919 free speech decision: "In sum, with respect to free exercise claims no less than free speech claims, '[y]our right to swing your arms ends just where the other man's nose begins.'"

— The majority avoided fundamental constitutional questions, limiting itself to interpreting the Religious Freedom Restoration Act of 1993. It says that government should not "substantially burden" the free exercise of religion without a "compelling government interest" and then only in the "least restrictive way" possible.

That law, intended to settle disputes about certain Native American religious practices, has now gone far afield. The Hobby Lobby decision is likely to have the same kind of unanticipated consequences.

"The Court, I fear, has ventured into a minefield," Justice Ginsburg wrote in her dissent.

Indeed, though Justice Alito opined that the ruling was narrowly tailored, it doesn't take much imagination to see where this could go. The Court previously has ruled that claims of religious objections to paying taxes were out of bounds. But on Monday, Sen. Ted Cruz, R-Texas — an experienced Supreme Court litigator — chortled that "Certainly, the struggle for religious freedom will continue, as cases made by hundreds more plaintiffs will wend their way through the courts."

Mr. Cruz and other opponents of the Affordable Care Act should be careful what they wish for. At a basic level, what happened Monday was that five elderly or middle-aged men not only impinged upon individual religious and non-religious beliefs, they further restricted the reproductive rights and health care options of tens of millions of American women.

This November, and in Novembers to come, those women aren't likely to forget that.

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