Hobby Lobby Hurts Women’s Rights and the First Amendment

In the Supreme Court 5-4 decision for the Hobby Lobby case, the court determined that corporations are exempt from a contraceptive mandate of the Affordable Care Act (ACA) under the Free Exercise Clause of the First Amendment. Specifically, the Court relied on a federal law known as the Religious Freedom Restoration Act (RFRA) to defeat the provision in the context of religious objections to women’s contraceptives.

To be clear, this decision wasn’t surprising. RFRA is arguably implicated, and when the government infringes on the free exercise of one’s religion, they have a very high burden to meet in order to justify their actions. But being unsurprising doesn’t mean this decision is a very good one.

From the outset of this lawsuit, it seemed like everyone immediately took a side. On one side, a fundamental foundation of this country is religious freedom. On the other side, every woman should have access to adequate healthcare, free from the burden of another’s religious beliefs. While in every lawsuit there is always a party that does not prevail, the problem with this case getting to where it did is that no matter how the decision would be handed down, everyone would lose.

How Does Everyone Lose?

To get a full understanding as to why this decision won’t really benefit anyone in the long run, it’s necessary to understand a little about RFRA. The RFRA was enacted in 1993, a few years after the Supreme Court handed down a decision called Employment Division v. Smith. Smith was the last in a string of cases encompassing a principal that a law would survive constitutional scrutiny as long as the law was neutral and applied to all citizens, religious or not, in the same way.

Put simply, the Court viewed the First Amendment‘s protection of the “free exercise” of religion as a shield and not a sword, meaning religion shouldn’t be a reason not to obey generally applicable laws. Or, in the words of the majority Court, allowing “the professed doctrines of religious belief superior to the law of the land” would essentially “permit every citizen to become a law unto himself.”

However, the public was generally outraged by this decision, and Congress vowed to fixed it. Congress’s cure was to write RFRA, and in doing so didn’t overrule Smith, but added an older standard to the equation, making a neutral law unconstitutional if it imposed a substantial burden one’s free exercise of religion.

Fast-forward twenty years. President Obama’s ACA has just passed, and with it, the contraceptive mandates at issue. Congress left it to the Department of Health and Human Services and health experts to determine approved contraceptive methods, making them less of a draconian mandate than simply well reasoned medical science. Plus, the businesses could always opt out and pay a tax. In any event, the owners of the stores successfully sued. People are expectedly outraged, and Congress has vowed to fix the problem. Again.

Sounds familiar, doesn’t it? There’s a saying: “a band-aid for a bullet-wound.” Only in this situation, the band-aid caused an infection requiring major surgery, which will undoubtedly have more complications. Sticking with the metaphor, the best solution is clearly to not get shot, but if you are, treat the wound properly.

Here, this means the Court should have stayed out of it, and according to 4 of the 9 justices, they quite easily could have. RFRA has been on the books 20 years now, and has rarely been litigated, because in reality many of these issues can be disposed of before going to the Supreme Court. This is another example of a case that could have avoided going as far as it did, but unfortunately, is instead going on the books as bad law.

Why Was This a Bad Decision?

Glad you asked. Here’s why:

1. It’s Unstable – First, this decision is unfavorable because it’s a clear demonstration of the ebb and flow of popular opinion influencing the supreme law of the land. As a country that has seen some bitter battles over slavery, racial equality, women’s rights, and now healthcare reform and gay rights, this is something we need to be particularly wary of. Allowing elected officials to carve out exceptions and add conditions to fundamental rights can have serious and unintended consequences, and make those fundamental rights less stable or less powerful as applied to certain groups.

To be fair, it can be argued that popular opinion established many of the rights listed above in the first place. However, that assertion misses the point; those rights were not the result of popular opinion opposing judicial decisions, but were instead reactions to protests, blood, sweat, and tears. In fact, this decision is a great example as to why Congressional reaction to popular opinion can lead to bad law. RFRA was enacted as a reaction to an unpopular Court opinion, has ironically now become the basis for this unpopular Court opinion, and even more ironically, has created the likelihood that Congress will step in again to write more laws, creating more exceptions to fundamental rights, all to appease their voting constituency.

2. New Corporate Right – The Supreme Court could have avoided this case altogether by simply saying that nowhere in their decades of First Amendment jurisprudence does a for-profit corporation have protection to “exercise” it’s religion. Instead, with this decision, the Court effectively said for-profit corporations can share the religious beliefs of their owners, giving such corporations a brand new right. For those unfamiliar with corporate law, this is backwards mainly because a primary purpose of incorporating is to create a new entity, thus limiting the liability of the owners. After this decision, owners may still avoid personal liability for the majority of lawsuits filed against the corporation, but can now make religious objections on behalf of the corporation. Additionally, non-profits already exist for this type of religious corporate personhood; are we to now assume for-profit corporations can claim tax-exempt status for religious purposes? Clearly not, but you see the point. This type of pick-and-choose, piecemeal set of protections, rights, and exemptions is dumbfounding, and feels arbitrary, at best.

3. Women’s Health Is Now Too Burdensome – Though the Court assumed the government has a compelling interest in protecting the health of women and fostering more options in their decision to become parents, they ultimately decide that the government, by requiring employers to pay for some type of contraceptive, hasn’t found the least restrictive way to meet that interest. The Court then offers a few suggestions, all of which will ultimately cost taxpayers much more than the individual corporate owners would have been on the hook for, or are simply not equipped to effectively handle being the main contraceptive choice for women. The standard the government had to meet is a notoriously high, and is really only defined by what does not measure up. Lawyers can now add “women’s health and contraception” to the list of things that are not important enough for the government to limit religious practices of a few in order to protect.

4. Tension Within the First Amendment  – If the government adheres to this decision and allows religions that do not believe in contraception to be exempt, then the result will be in complete and obvious tension with the Establishment Clause, the forgotten First Amendment cousin of the Free Exercise Clause. Without getting too deep into this point, the government cannot pass or enforce laws that respect the establishment of a religion or show favoritism to one belief over another. By allowing some religious beliefs to be exempt from a law, that law is, in essence, doing exactly what the Establishment Clause seeks to forbid.

What’s Next?

In the wake of this decision, our country may quickly find itself in a minefield of confusion and uncertainty, which is the opposite of what Supreme Court jurisprudence should accomplish. Moreover, the blame for this confusion will likely be shifted along political party lines and lead to a new law with new exceptions favoring some, but ultimately hurting the rights of the people in this country as a whole.