The Hobby Lobby Decision is not the End of the Battle for Relgious Liberty

Many people rejoice that the Supreme Court ruled that Hobby Lobby is exempted from paying for insurance that covers medical services in conflict with the religious convictions of the owners. It is right and proper to give thanks for this outcome, but it would be foolhardy to believe that the Freedom From Religion Foundation will dissolve or that the federal government will no longer threaten the free exercise of religion. The decision in the Hobby Lobby case, along with two other cases that were bundled with it, was cast in very narrow language with the deliberate intent not to answer broader questions in connection with the case.
In fact, according to Mark Levin, a lawyer who specializes in constitutional law, the narrowness of the decision is actually a threat to the First Amendment. He pointed out in commentary delivered during his radio show on the evening of the decision that the decision is rooted in the Religious Freedom Restoration Act of 1993, not in the First Amendment right to free exercise of religion.
In the syllabus for the case released by the Supreme Court on June 30, 2014, the foundation for the decision is stated:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil¬ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling govern¬mental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious be¬lief.” §2000cc–5(7)(A).
The short version of the decision is that the government has a compelling interest in providing women cost-free contraception in all the 20 forms currently available, but to compel an employer to underwrite the provision of any of the forms that conflicts with the employer’s religious convictions is not the least restrictive means of furthering that interest. The high court declared, “The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statu¬tory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.”
In RFRA, the justices found a way to confine their deliberations. They declined to comment on the relationship of this case to the First Amendment, and their unwillingness to assert this relationship is a threat in future cases where religious liberty is under attack. The Religious Freedom Restoration Act of 1993 was intended to bolster First Amendment protections, but as often happens to good intentions, the unintended consequence was to give the court a way not to strengthen the First Amendment.
This decision only narrowly won the day. Four of the nine justices dissented. Breyer and Kagan published a dissenting opinion stating that they believe that Hobby Lobby had no standing before the court. They affirmed the finding of the Third Circuit which had “held that a for-profit corporation could not ‘en¬gage in religious exercise’ under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity.” Ginsburg wrote an expansive dissent, in which she was joined by Sotomayor, Breyer, and Kagan, the last two excepting a small section of Ginsburg’s analysis. The bottom line is that four of the justices on the court do not believe that the most important element of the decision is legitimate. Four of the justices on the Supreme Court do not believe that a corporation engaged in business for profit has any right to exercise the religious convictions of its owners.
The disagreement between the majority and the minority in this decision lies in the definition of a person who has the right to exercise religious convictions. Most people think it is just common sense to recognize that when a human being marries, goes to school, or starts a business, he is the same human being as when he goes into his house or his church. Furthermore, most people think that religious teachings shape the way a person lives and works, and most of the criticisms of religious people by non-religious are centered on observations of hypocrisy – the failure of a religious believer to live up to the standards taught by his religion. To most people, it seems only normal that a person of faith operating a business will not stop living by the principles of his faith when he is at work.
The Hobby Lobby case hints that this might be true, but it constricts the language of the decision so tightly that it is not very comforting. Christians cannot relax. They would be well advised to study the way legal proceedings surrounding religion develop in countries with acknowledged secular governments. The government of the USA does not label itself “secular,” but the patterns of thinking with regard to religion expressed by the current administration have much more in common with the government of Tajikistan than with the US government during the administration of George Washington. Jesus said that his followers need to be “wise as serpents,” and that is because Christians will always be walking among serpents who desire to suppress and shut down any expression of Christian faith in public. Christians should give thanks that the Hobby Lobby decision helps many businesses in crisis with the Affordable Care Act, but they should not believe that this means that Christians will no longer be challenged when they express their faith.

2 thoughts on “The Hobby Lobby Decision is not the End of the Battle for Relgious Liberty”

Comments are closed.