Skip to main content

Supreme Court Justices John Roberts, Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy
Congress can't establish a religion. But these guys will certainly try.
This past Monday, the five conservative male justices of the Supreme Court issued their ruling in perhaps the most highly anticipated decisions of the term: the Hobby Lobby case. At issue was whether the contraceptive mandate of the Affordable Care Act posed an undue burden, as based on the Religious Freedom Restoration Act, on the religious beliefs of the closely held corporations owned by the plaintiffs. And as could have been expected from a Court that has consistently taken the position of expanding corporate rights while diminishing women's rights, the 5-4 decision went to the plaintiffs, absolving them of the responsibility of providing health insurance plans that covered four forms of contraception that, according to the religious beliefs of the plaintiff corporations, were "abortifacients."

Ignoring the part where corporations are now entities that can be endowed by their creators with religious beliefs, the Court's decision was based substantially on the notion that the contraceptive mandate is an undue burden on religious freedom because there are less restrictive means theoretically available to the government to achieve the desired goals. It does not seem to matter to Justice Alito that the specific method to which this decision alluded is an administrative regulation that might not survive the next president, let alone the very Roberts Court that referred to it; the majority's solution is simply to let Congress pick up the tab to lessen the burden on religious corporations.

In her dissent, Justice Ginsburg outlines precisely why the mandate is necessary to accomplish the compelling government interest of providing women access to contraception: namely, that carving out an exemption for religious corporations and requiring the government to step in to cover the shortfall would place an undue burden on the women affected by such a move, and weaken the interest that the mandate was specifically designed to effect. But according to the minority, the decision is dangerous for a far more compelling reason, as explained below the fold.

Writing for the minority, Ginsburg wonders about the possible scope and limits of what the majority's decision could entail, first in terms of what cases the "let the government pay" option could apply to as used in the decision:

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?
And not only that: Ginsburg also brings up the objection that if a specific exemption is carved out for contraception, that by analogy, it would be difficult to argue against similar exemptions for other medical services which other religions find objectionable:
And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

The majority opinion does its best to respond to the dissent by claiming that it is limited specifically to the contraceptive mandate and no other possible service to which any other religious corporation might object:
[O]ur decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
But tellingly, the opinion falls short of specifying exactly how the dissent is misguided, and does not say that other groups would not be able to bring similar cases. Instead, it just says that they haven't yet:
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate..
And that if such cases are brought, they will indeed have to be considered on a case-by-case basis:
Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
In other words, the Court will decide instance by instance whether a particular religious exemption is warranted—and they will make that determination not by any consistently applied aspect of law, but by how many people are raising an objection and how compelling the Court finds the particular service to which the objection is being raised. A bunch of wealthy evangelical Christians objecting to a service objected to by the Catholic religion shared by multiple members of the Court? Well, that passes muster. But a Scientologist-owned corporation objecting to having to cover insurance that covers psychiatric care? Somehow, one gets the feeling that even though the underlying arguments would be exactly the same, that the Court would somehow find evidence that whatever policies are in place are the least restrictive, and that the government should not, in fact, find a way to pick up the tab.

Ginsburg is absolutely right that the majority opinion in Hobby Lobby opens the door for any religious group to use the ruling as precedent to challenge the RFRA. But precedent alone is no guarantee of actual results. The Roberts Court doesn't seem particularly interested in granting exemptions under the Religious Freedom Restoration Act to just any sincerely held religious belief: after all, we would need to consider the legitimate governmental interests in each case. But here's what we do know: in the case of equal opportunity for women versus a religious doctrine held by the plurality of the members of the Supreme Court, the religious doctrine just won, even as they say in the same breath that no precedent should be considered established by their decision.

In short, the Supreme Court has decided that, far from interpreting the law consistently, it will get to be the ultimate arbiter, on an ad-hoc basis, of which religious claimants get exemptions from what governmental requirements. Evidence so far suggests they'll use it for the particular doctrines that suit them. With their decision in Hobby Lobby, the Court has basically given itself the right to establish preference for particular religions over others. And while the Obama administration may be able to fix the damage this ruling does to women's health, the lasting damage to religious pluralism may be a much more difficult consideration.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Alumbrados, Sylv, chuck utzman, Chi, deben, Geenius at Wrok, FamilyDocForDean, GayHillbilly, Matilda, dpeifer1949, Theodoric of York Medieval Liberal, johnell, CoolOnion, splashy, dksbook, Lilyvt, Redfire, TexDem, Marblex, Eyesbright, barbwires, KayCeSF, Josiah Bartlett, historys mysteries, marina, radarlady, OpherGopher, one of 8, owlbear1, Burned, lasky57, kaliope, Blue Intrigue, peacestpete, bently, don corazon, Mr Bojangles, BeadLady, Lefty Coaster, DarkestHour, el cid, rage, NancyWH, NonnyO, Cronesense, Habitat Vic, tgypsy, jnhobbs, leonard145b, JML9999, on the cusp, VA Breeze, Sixty Something, jamess, mayim, RandomNonviolence, SottoVoce, FaithChatham, BYw, Karen Hedwig Backman, Mayfly, legendmn, Carol in San Antonio, Tara the Antisocial Social Worker, aunt blabby, Denise Oliver Velez, IreGyre, kingfishstew, Its the Supreme Court Stupid, commonmass, p gorden lippy, Oh Mary Oh, soaglow, slice, Onomastic, annieli, Bluefin, kayak58, Tommye, poorbuster, OldGrammy, FarWestGirl, NormAl1792, Teiresias70, marleycat, akmk, BarackStarObama, nonpareil, Grandma Susie, chira2, Liberal Mole, ratcityreprobate, weinerschnauzer, nyer11Oak, bassinduo, allergywoman, i saw an old tree today, OldDragon, Heart n Mind, charliehall2, a2nite, JGibson, dandy lion, willrob, Rixar13, james321, shabbedolle, hungeski, madcitysailor, atana, countwebb, Escaped, Linda1961, remembrance, BroadBlogs, Tim DeLaney, aresea, alice kleeman, ORswede, optimistic pizza, howabout, GreenMother, OjaiValleyCali, Lordcaradoc, skepticalcitizen, TheDuckManCometh, danjb, nancyjones, Dr Arcadia, supertascha, gnothis, Ellamenta, LiberalLoner, SueZbell, hbk, Kirk Welch, kfunk937, ktdid2late, raspberryberet, Betsrutan, jackdabastard, bobcat41702, Doctor Jazz, RN that thinks, jessbell911, Blackwolf53, darleneh

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site