Hobby Lobby, Redux

March 26, 2014

On Thursdays, Mark Rubin Writes usually focuses on general legal issues. Because I think Sebelius v. Hobby Lobby Stores, Inc. matters greatly, however, you’re getting a follow-up, after oral argument on Tuesday before the United States Supreme Court.

Here are some random thoughts. I have not read or listened to the transcript. I work—and was in trial for two days—and simply haven’t had the time. That said, I have heard and read several reports.

Justice Antonin Scalia wrote the majority opinion in Employers Division, Department of Human Resources of Oregon v. Smith in 1990. The case involved the religious use of peyote. There, he wrote:

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,”  and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this. [Internal citations omitted.]

No commentator I have read suggests that Justice Scalia will express similar concerns in Hobby Lobby. That said, Justice Scalia’s view in Smith seems reasonable and rational. Justice Elena Kagan channeled this view in a line of questions, perhaps in the hope that she might help keep Justice Scalia consistent.

The Religious Freedom Restoration Act of 1993 is another law signed by President Bill Clinton—like the Defense of Marriage Act—to pander to the right. It applies to Hobby Lobby, giving Justice Scalia the out he may want. That does not mean, however, that a ruling in favor of Hobby Lobby Stores does not invite corporate America to come up with all manner of deeply held religious beliefs the government has burdened. Bad law!

Chief Justice John Roberts suggested an alternative ruling, giving closely held corporations—he mentioned corporations selecting Subchapter S tax treatment—the right to have religious beliefs, and not giving such rights to public corporations. (S corporations can only have 100 shareholders, they must be individuals or certain types of trusts or estates, and meet certain other requirements. Income gets taxed once, only at the shareholder level.)  Nice compromise, Chief, but why do corporations that choose a particular type of tax treatment get to have religious beliefs, while others don’t? Really, this is dumb stuff, beneath the dignity of the Court.

We’ll see what happens here. Don’t be shocked, however, by a plurality decision in favor of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp., with Justices Alito, Scalia, and Thomas holding that the law applies to corporations, the Chief Justice and Justice Anthony Kennedy limiting the right to certain corporations, and the other four justices dissenting. Time will tell!  

Jamelle Bouie has written a very enlightening piece, “God Does Not Regard the Fetus as a Soul” in Slate, published on Tuesday. Some of the theology in the article is new to me—not my forte—and I’m sure some people disagree with some of what the writer says. What resonated with me, though, is the fact that there’s a credible argument that campaign financing and power play a role in the religious beliefs people claim they hold.

Finally, and this is my last point, I find it hard not to have the sense that we have finally, at long last, reached the point where we can’t get of our own way. On legal issue after legal issue we seem committed to tripping over our own two feet, in a way unbecoming of the greatest nation on planet Earth. I have no solutions, but it’s really hard to watch us plod along, seemingly incapable of reaching common-sense outcomes that reflect the notion that people must bend toward the majority. (A friend, talking about leadership issues in our community, referred to “an overdeveloped sense of egalitarianism,” in which nothing can happen unless everyone agrees. Maybe our community looks like the rest of our country.)






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