Apart from whether or not we like the Hobby Lobby decision, there seems to be some confusion about the ruling evidenced by the fact that people keep asking “What about Blood transfusions in companies owned by Jehovah’s Witnesses?” or “…mental health care from Scientologists?” or “…minimum wage from free market biblical economics types?”…and so on.
In her dissent, Ruth Bader Ginsberg laid out these concerns while Samuel Alito, in the majority opinion, seemed to say “nope…don’t worry about it…we wouldn’t rule the same way on those cases and it’s never happened before.”
But a close reading of the opinion and a little legal background will help make sense of their divergent claims and show that, in the long run, either one of them could be right. There’s an internal logic to Alito’s assertion, but Ginsberg is right on this point: it’s a Pandora’s box and it will depend on the details of each subsequent challenge. Here’s why.
This was not a First Amendment case. It was filed under the Religious Freedom Restoration Act (RFRA). Understanding this will require a little legal history but I promise to keep it brief.
Prior to 1990 The Court ruled on First Amendment Free Exercise claims with a test known as the Sherbert Test. Constitutional rights are not absolute (think laws against human sacrifice). Essentially an infringement on Free Exercise was permitted if:
1) there was a compelling state interest, and;
2) the state could not meet that interest in a less intrusive way (least restrictive means)
In 1990 (Smith) The Court abandoned that test in a decision written by Scalia who argued that the Constitution did not guarantee religious exemption from laws that apply generally.
Congress responded by legislating what had been the Sherbert Test (RFRA) and then-President Clinton signed it into law. The Court struck down RFRA saying it violated the Court’s authority to interpret the Constitution but let RFRA stand as a law limiting the Federal Government (thus its relevance to the Affordable Care Act).
In his Hobby Lobby decision, Alito dismissed concerns about other religious exemption claims saying that each claim would have to be made on its own and the state would argue for its compelling interest. He did not find a compelling interest here (but he suggested he would with, for example, racial discrimination) and cited the fact that the Administration had already made accommodations for other groups as evidence that there were “less restrictive means” to meet any state interest.
Future cases about employer regulation of blood transfusions, exemptions from minimum wage laws, laws requiring LGBT equal treatment, or any other law to which a person (or a corporation) makes a free exercise claim will hang on whether the state can make a convincing case that it has a compelling interest that it cannot achieve in another way. Since “compelling” is a subjective standard, it’s likely to skew toward the interests of the majority and against those of minorities.