Eugene Volokh:
Here’s my shot at trying to summarize what the majority was saying in the Hobby Lobby decision. Note that I’m saying this in the voice of a hypothetical Supreme Court justice trying to quickly explain his decision; I’m not necessarily endorsing the statements made below but just trying to accurately capture the majority’s reasoning.
1. Congress has decided that religious objectors may go to court to demand religious exemptions from federal laws, when the law makes them do things that they view as religious forbidden. That’s not required as a constitutional matter under the Free Exercise Clause; the Court decided that inEmployment Division v. Smith (1990). But in enacting the Religious Freedom Restoration Act (RFRA), Congress chose to give religious objectors a statutory right to such exemptions, at least in many cases:
Government shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability, …
[unless the Government] demonstrates that application of the burden to the person …
is the least restrictive means of furthering [a] compelling governmental interest.
2. RFRA doesn’t exclude laws which impose a burden on closely held religious corporations. To be sure, a corporation is a legal fiction; it cannot itself practice religion, or for that matter do anything else. It acts only through people.
But — precisely because a corporation is just a legal fiction — when a law requires such a corporation to do something that its owners believe to be religiously forbidden, it burdens the religious freedom of those real owners, and not just of the fictional corporation itself. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies.”
3. The owners of Hobby Lobby sincerely believe that it’s wrong for them to buy their employees insurance plans that they see as supporting abortion. They have no objection to contraception as such, but they view contraceptives that prevent the implantation of a fertilized egg as tantamount to abortion drugs.
The government acknowledges that its regulations require businesses to pay for such contraceptives (on pain of substantial monetary penalties). Therefore the law substantially burdens the owners’ religious practices, by requiring them to do something they think religiously forbidden.
To be sure, the law doesn’t require the employers to personally get abortions or perform abortions. But the employers sincerely believe that even buying insurance policies that pay for such abortions is religiously forbidden complicity in abortion.
It’s not for courts to second-guess such the reasonableness of such judgments about how to define religiously forbidden complicity. “[T]he Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”
4. Of course, the legal system has many rules that require people to do what they think religiously wrong (or, the legal equivalent, to not do what they think religiously required). Not all religious exemptions can be granted. RFRA provides that, if denying the exemption is really the least restrictive means of serving a compelling government interest, a court should indeed deny the exemption.
But “[t]he least-restrictive-means standard is exceptionally demanding.” Under RFRA, if the government can — even by changing the way its programs operate, and at some cost to taxpayers — bothadequately serve its compelling interests and provide an exemption to religious objectors, then it must do so.
And here, the government can indeed both provide free contraceptives (as the regulations under the Congressionally enacted Affordable Care Act provide) and exempt religious objectors (as the Congressionally enacted Religious Freedom Restoration Act provides).
First, the government could pay for the contraceptives directly. Though that would cost taxpayer money, religious exemptions sometimes do cost money, and the extra cost would be a tiny fraction of the ACA’s $130 billion expense per year. Indeed, RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act, provides that it “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”
Yes, the SCOTUS ruled that if Hobby Lobby believed the morning after was equivalent to abortion, (even though they admitted it was not) they were allowed to believe that. So, now a female employee with a life threatening pregnancy cannot get an abortion covered and that’s is equivalent to murder. Lot’s of suits coming from this asinine decision by activist judges..
This ruling opens interesting possibilities. Can a Taliban or Al Qaeda member in US custody claim a religious exemption from terror prosecution under the RFRA? Maybe if they incorporate?
Although the owners of these for-profit corporations oppose the contraceptive requirement because of their pro-life religious beliefs, the requirement they oppose will dramatically reduce abortions. … Imagine a million fewer unintended pregnancies. Imagine healthier babies, moms and families. Imagine up to 800,000 fewer abortions. No matter your faith or political beliefs, our hunch is that we can all agree that fewer unplanned pregnancies and fewer abortions would be a blessing.
How pro-life can you be if you’re buying things from China? Hobby Lobby is funding millions of abortions in China. Hypocrites!
@This one: Can the government force a Jew to eat bacon? Can the government force a Muslim to draw a picture of Mohammed? I thought the left was all about that “separation of church and state”? Too bad Obama overstepped his bounds, but little did we know at the time that Obamacare was not an exception to the rule… it was the method of Obama rule.
@This one: Speaking of hypocrites, how is government funding of abortions going to reduce their utilization? It is already viewed, by the left, as the preferred method of birth control when suppressing their animal instincts to get wasted and knocked up fail them (see Sandra Fluke).
Hypocritical is characterizing this as Hobby Lobby taking something away from women; they NEVER offered these things they find objectionable to their sensibilities. The government FORCED them to. All the Hobby Lobby employees went to work there with the foreknowledge that they did not have abortive birth control.
It was about control and Obama lost. Fail, fail, fail.
@This one:
The morning after pill IS an abortion pill. If it destroys a fertilized egg it is just at a different stage.
There are many different ways of practicing birth control , including keeping your legs closed.
If you read what Hobby Lobby was against, it was only four out of the twenty mandated (or whatever word you wish to use) contraceptive methods. They are vehemently against abortion and they should not have to compromise their beliefs. IF you don’t want to abide what the owners of the company want, get another job. It isn’t as if the people that work there do not know.
If you don’t watch out the government is going to tell you when to take a pee. If you are a socialist/communist (which by the way is the old fashioned word for progressive/liberal) you won’t care.
In the case where a Muslim supermarket employee took their company to court to have the right to not scan out pork products or alcohol products in the checkout line, the court ruled the exact same way.
Yes, you, the customer are slightly inconvenienced by having to use other lines.
Yes, the boss is slightly inconvenienced by having to insure there ARE other lines open whenever she works.
But her idea of ”complicity in sin,” of your eating pork or drinking alcohol that she ”sold” to you should not lead to her losing her job.
Oddly, the same liberals screaming, ”FOUL!” now were agreeing with the courts in her case.