NEARLY TWO WEEKS AGO, MOST OF LIBERAL AMERICA began a period of mourning after the United States Supreme Court handed down its most striking ruling to date. Having traditionally paid far more attention historically to decisions affecting social issues than matters of business, many of our ideology were blindsided by Burwell v. Hobby Lobby, a decision that somehow seemed to affect and pervert both.
Timelines and pieces filled with anguish–or all-out panic–flowed in the days following the 5-4 ruling, denouncing it as a severe injustice to women’s rights and the ability of science to shape health policy. One article in Blue Nation Review, a new journalism venture headed by Jimmy Williams, called on women everywhere to “incorporate themselves”, as the highest court in the land had now given more protections to businesses than they. Ironically, America seemed united the week before in praising the merits of the Roberts Court on the 9-0 ruling that protected people’s private information held in smartphones. Perhaps this was a bit of collective self-interest on display; apparently nothing unites liberals and conservatives more than telling cops to shove off and “get a warrant.”
But I digress.
Reading through Justice Samuel Alito’s opinion, it seemed straightforward enough: terrible as it might be, Hobby Lobby’s founder’s beliefs that four of the twenty forms of contraception mandated to be covered by the Affordable Care Act were upheld as infringed upon under the Religious Freedom Restoration Act, a bill signed into law by President Bill Clinton in 1993. But as I read through Justice Ruth Bader Ginsburg’s dissent, a 35-page categorical dismantling of the Court’s ruling that seemed to place unprecedented, sweeping power in the hands of for-profit businesses, one word kept passing through my mind: How?
How could this Court overturn nearly two hundred years of clearly established, starkly defined legal precedent? How could the Judicial branch of our government place belief in fanciful machinations above science and reason? Did the Supreme Court just legislate from the bench? What type of religion do David and Barbara Green follow, as the Bible itself, allegedly the immutable “Word of God”, bids its denizens to place themselves under all earthly authority, as found in Romans 13:1 and 1 Peter 2:13?
What exactly happened here?
In truth, it’s really not that simple. And when it comes to matters of the interpretation of law, there really is no reason to believe it should be.
First of all, if female employees of Hobby Lobby were stripped of every form of access to contraception by this decision, I would have joined in the chorus of liberal outrage. However, as The Atlantic’s Emma Green writes, women who work at these stores will still have access to birth control:
In the majority opinion, Alito specifically suggests that the government could use the same kind of exemption it has set up for non-profit organizations: Companies would have to sign a short document certifying that they object to providing birth-control coverage, and then the government would take over coverage from there. Several separate court cases about this accommodation are still pending in lower courts, but the point is that the Court doesn’t think bosses should get to deny affordable birth-control access to their employees—they just shouldn’t necessarily have to pay for it.
That said, there can be little doubt Burwell v. Hobby Lobby granted corporations a grand amount of unprecedented power. And yes, there will be (and have already been) a number of entities that will and have issued their own challenges to the law, including from supporters of the President. Ron Fein, legal director of Free Speech For People, gave his take in The Daily Caller:
One of the Court’s problems is a failure of imagination. The justices look at the current landscape of corporate ownership, and the fact that no one ever thought to raise claims for corporate religious exemptions before, and conclude that the issue is narrow. But reduced employee insurance costs will give a slight market edge in a low-margin business. If a small group of evangelical investors, or Saudi princes, can buy a company and then cut costs on health insurance by raising religious objections to rules that their competitors must follow, they will. And if a Saudi billionaire objects to paying any health insurance costs for women who work outside the home, then he can really cut costs.
While this is now true if said investors wish to create a for-profit business, the same has already been true for anyone of deeply held religious beliefs wishing to start a non-profit. All that seemed to happen here is a balancing of the for-profit/non-profit scale and nothing more in terms of the contraception mandate.
Justice Kennedy may be right that the decision is not a slippery slope toward allowing exemptions from other medical coverage (such as blood transfusions and vaccines) or toward allowing religious exemptions from anti-discrimination law. The court expressly disavowed these possibilities, arguing that compelling state interests, in public health and equality, respectively, justify denying exemptions in those cases. This argument is vulnerable, however. The majority did not dispute a compelling state interest in Hobby Lobby—it instead struck down the contraception mandate as not narrowly tailored to meet that interest. Simply noting that compelling interests exist in other scenarios only matters in light of how rigorously the court applies the narrow tailoring requirement to those future cases. The majority is also conspicuously silent about LGBT discrimination. It disclaims the possibility that Hobby Lobby could justify racial discrimination but says nothing about LGBT discrimination or even gender discrimination—even though Justice Ginsburg expressly raised that prospect in dissent. If Justice Kennedy is proven correct that Hobby Lobby does not undermine LGBT rights, it will be because of the decision of a future majority, not today’s opinion.
Secondly, the Hobby Lobby case, and this litigation season in particular, has indeed become yet another example of the Roberts Court’s penchant for aggressively inserting the Judicial branch into actual policycraft, as Simon Lazarus of The New Republic writes:
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constitutional status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
But finally, for those who believe this case to be a simple matter of five Republican men exercising their patriarchal duty to their genitalia, and/or a grand exercise in how orthodoxies come together to shove their own fictive beliefs down the throats of the American public, it is important to remember that in a nation of plurality, where so many systems of belief come together and are represented, some folk will operate their businesses by their own personal ethos, and will see even their for-profit ventures as extensions of ministry. We can whinge day after day about how unbelievably stupid, wrong-headed, idiotic, and problematic this ruling is. We can praise former federal judges for “speaking truth to power” by telling the Court to “STFU.” But at the end of it, this still remains a country where people are free to make their own decisions, and order their lives by whatever personal beliefs they choose, as we are free to do the same.
Like it or not, as Damon Linker writes, democracy was upheld:
As everyone except children and ideologues understand, goods sometimes conflict with one another. Liberalism’s greatest virtue and strength as a political philosophy is its effort to adjudicate those conflicts, to allow people on various sides of moral and theological clashes to reach peaceful settlements that, on the whole, maximize human freedom.
It’s a messy business that requires trade-offs and compromises, and sometimes leaves no one fully satisfied. But that doesn’t mean it isn’t preferable to the alternative, which is to fully satisfy some, leave others significantly less free, and create a more homogenous civil society, with private entities forced to function as arms of the liberal state.
Emma Green rightly points out that no one side gets to be “right” with respect to the Hobby Lobby ruling, as this is a decision not to be placed within that context. True equality means giving those we despise just as much a berth as we give those we love and agree with.
Such is the necessary work of maintaining a truly free democracy.