Hobby Lobby case reveals collapse of key element of religious liberty: accommodation

The New York Times SyndicateJuly 2, 2014 

— . The U.S. Constitution speaks of the Supreme Court’s jurisdiction over “cases” and “controversies.” But when social controversies do come before the court, its powers are limited. In Burwell v. Hobby Lobby Stores, which concerned the dispute over the Affordable Care Act’s contraceptive mandate, the court may have decided the case. The larger controversy, however, won’t be settled so easily.

By a 5-to-4 vote, the court held that the mandate, which requires employers to provide health insurance coverage for contraception, could not be applied to closely held for-profit corporations with religious objections to some forms of contraception. Religious groups described the mandate as part of a war on religious freedom. Supporters of the mandate countered that a victory for the plaintiffs would allow large corporations, under the cover of religious freedom, not just to impede women’s exercise of their reproductive rights but also to defy civil rights statutes with impunity.

Amid this heated talk, it was easy to lose sight of the fact that this was a statutory case, not a case decided under the First Amendment’s protection of freedom of religion. The statute in question, the Religious Freedom Restoration Act, states that the government “shall not substantially burden” the exercise of religion without satisfying a demanding legal test.

It is worth noting that the act was championed by President Bill Clinton and passed in 1993, with near unanimity, by a Democrat-controlled Congress. The act was drafted in response to a controversial 1990 Supreme Court decision that made it easier – far too easy, according to critics of all political stripes – for the government to burden the exercise of religion.

The decision in Hobby Lobby was no shock to anyone familiar with the heavy weight that the Religious Freedom Restoration Act places on religious accommodation. The fate of the case was sealed 21 years ago – not by a slim majority of the court, but by virtually every member of Congress. In a dissenting opinion Monday, Justice Ruth Bader Ginsburg argued that the court’s ruling in Hobby Lobby was one of “startling breadth,” but the statute itself is deliberately broad.


So why all the shouting? If the Religious Freedom Restoration Act is clearly written, and the product of a democratic process, what explains the apocalyptic rhetoric surrounding this case? In truth, the sources of the controversy lie outside the issue of the contraceptive mandate itself. And that should be great cause for concern – to both sides.

The first source of controversy is the collapse of a national consensus on a key element of religious liberty: accommodation. Throughout American history, there has been widespread agreement that in our religiously diverse and widely devout country, it is good for the government to accommodate religious exercise. We have disagreed about particular accommodations (may a Muslim police officer wear a beard, despite police department policy?), and especially about whether religious accommodations should be ordered by judges or crafted by legislators. But we have generally agreed that our nation benefits when we help rather than burden those with religious obligations. That consensus seems, quite suddenly, to have evaporated.

A second source of controversy is that many people view the Hobby Lobby case as concerning not just reproductive rights but also, indirectly, rights for gays and lesbians. Advocates for same-sex marriage have long insisted that their own marriages need not threaten anyone else’s, but citizens with religious objections to same-sex marriage wonder whether that is entirely true: Will a small-business owner be sued, for instance, for declining to provide services to a same-sex couple? Conversely, and understandably, gay and lesbian couples wonder why they do not deserve the same protections from discrimination granted to racial and other minorities. For both sides, Hobby Lobby was merely a prelude to this dawning conflict.

The third source of controversy is a change in our views of the marketplace itself. The marketplace was once seen as a place to put aside our culture wars and engage in the great American tradition of buying and selling. The shopping mall has even been called the “American agora.” But today the market itself has become a site of cultural conflict. Hobby Lobby is one of many companies that seek to express faith commitments at work as well as at home and that don’t see the workplace as a thing apart from religion. Many companies preach and practice values, religious and otherwise, that are unrelated to market considerations. CVS, for example, recently announced that it would stop selling tobacco products, regardless of how that decision might affect its bottom line.

A country that cannot even agree on the idea of religious accommodation, let alone on what terms, is unlikely to agree on what to do next. A country in which many states cannot manage to pass basic anti-discrimination laws covering sexual orientation is one whose culture wars may be beyond the point of compromise. And a nation whose marketplace itself is viewed, for better or worse, as a place to fight both those battles rather than to escape from them is still less likely to find surcease from struggle.

Expect many more Hobby Lobbies.

The New York Times

Paul Horwitz is a professor at the University of Alabama School of Law.

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