The 5-4 Hobby Lobby decision of the activist Roberts’ Court has written a new law that will allow private for-profit corporations to invoke religious beliefs when determining benefits for their employees. Like all judicial decisions, this one must be analyzed for both its short-term practical and also its long-term ideological effects.
In practical terms, the decision is restricted to only a few family corporations falling within the Court’s narrowly drawn parameters. Although some 90% of US corporations are held by five or fewer owners that is only one part of the requirements imposed by Justice Alito’s majority decision, who added the need for a demonstrated history that the corporation’s economic policy is guided by religious belief. In the shark-infested economic waters of corporation competition, there are few such religiously defined companies to complicate application of the Affordable Care Act. The court indicated that the Obama Administration has already provided a blue-print for protecting conscience rights while still securing to workers the same access to birth control medical coverage as the majority of the nation. The implication is that there will be no immediate change to applying the ACA.
Additionally, one should note that the source cited by the court in providing Hobby Lobby with religious exemption was not the Constitution, but a congressional law. Should the Religious Freedom Restoration Act (RFRA) be repealed or even amended, today’s decision can be wiped away by a simple majority of legislators.
The long-term impact of this legislation passed by only men on a conservative Supreme Court is more clouded, however. The original intent of the RFRA was not to include corporations when this law was enacted under Bill Clinton in response to the restrictions placed on the practice of religion by none other than Justice Scalia (Employment Division v. Smith, 1990). But in 2014, there was not a whimper of defense of original intent from the justice noted for his sarcasm for everyone else’s contradictions. It is ironic that Antonin Scalia, the Great Defender of original intent has turned into the Great Pretender. In recent years, his reputation for being smart has degenerated into fame for being smart-alecky; his stand on principle has become merely partisanship.
The Roberts’ Court has followed a strategy of making a very limited right-wing decision and then citing that decision to make more sweeping dictates later on. The process has already begun with a handful of other refusals to obey the provisions of the ACA: viz., not filling out the form consigning insurance payment for contraception coverage because it is “cooperation with evil;” there has also been a refusal to abide by non-discrimination provisions protecting LGBT persons in service of federal contracts. The Roberts’ Court may well use the Hobby Lobby decision in the future to impose new religious rights of employers over the religious rights of employees. Should this happen, then the Hobby Lobby decision may be registered in the black hole of history alongside the Dred Scott Decision. Fear of this insidious backtracking, I think explains, the passionate repudiation of this move by Justice Ginsberg.
The US Constitution forbids the establishment of religion, that is to say, that no law may favor one religion over another. The Court pretends that Hobby Lobby is to be applied on by Christian groups and only to reject birth-control pills, but surely in the future other religious providers may object to insuring practices like vaccinations, blood transfusions, or in the case of Christian Science, any consultation with medical doctors. An Amish company may object to photo-IDs on religious grounds. Muslim-owned companies may seek the right to fund only health insurance plans that observe Sharia Law that, among other things, prohibits a woman from a medical examination unless her husband is present. I fear Hobby Lobby may lead to an avalanche of other cases for many religions in a wide variety of applications.
If that liability is not enough, the majority decision as written by Alito ranks as one of the worst legal arguments in SCOTUS history. Remember that Hobby Lobby objected to certain forms of birth control that prevent implantation of a fertilized egg, claiming that these were forms of abortion. Medical science has always held that pregnancy results from implantation, not from fertilization. Alito dismissed this objection, writing that empirical science didn’t matter as long as the religious belief is “deeply held.” This opposition between reason and faith is a distinguishing mark of fundamentalist Protestantism and is reason for Mainline Protestants, Jews, Catholics and just about everyone else to fear this theocratic principle.
The only silver lining to this hog-wash logic is to anticipate a Democratic president after 2016. After all, even conservative justices eventually leave the Court. Elections matter, Democrats!