Why Hobby Lobby is a Pandora’s Box: Ginsburg v. Alito

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.

jingerso@unf.edu'

Julie Ingersoll is Associate Professor of Religious Studies at the University of North Florida. She is the author of Evangelical Christian Women: War Stories in the Gender Battles and is currently writing a book on the influence of Christian Reconstructionism.

  • Rmj

    “Since “compelling” is a subjective standard, it’s likely to skew toward the interests of the majority and against those of minorities.”

    Except in Burwell v. Hobby Lobby, the skew was toward the minority (the five owners of Hobby Lobby) v. the majority (the employees of Hobby Lobby).

    “Majority” is subjective, too.

  • Jim Reed

    There is a majority of Republican appointees on the Supreme Court, so if they all want something it happens. They are the final majority.

  • Jim ‘Prup’ Benton

    Okay, it is one of my pedantic quibbles, but the problem isn’t that they are ‘Republican Appointees.” We’ve had plenty of good justices who were, even recently — though not this Century. But we’ve had Warren, Brennan, Blackmun, Souter, O’Connor, all of whom had their strong points — and even a Harlan the 2nd was a respectable Conservative.
    The problem is not that these Justices were appointed by Republicans but that they are and have remained partisan Republicans in office, not merely ruling according to certain principles, but choosing party over principles when there was a conflict. (That is what has distinguished them from current Democratic members of the bench — and practically from every previous Justice from either party. Even McReynolds’ “Four Horsemen” were more principle than party driven.)

  • Jim Reed

    Around 1980 Republicans mastered the art of pandering to Christianity. After spending a few years consolidating their power they knew they had unbreakable control of the social conservatives, and they could go full on into greed of the rich mode as long as they spent at least a little effort to keep up the pandering. Anyone who votes Republican today or since 2000 shares blame for what the Republicans have done. I am not putting Republican supreme court justices of the past in the same category as the Republican supreme court justices of today.

  • Jim ‘Prup’ Benton

    Entirely agree — I said I was just being pedantic. But I want to add to your comment. Anyone who votes for ANY Republican Senatorial Candidate — since it is the Senate that conforms SCOTUS Appointees — is not only responsible for what is being done by SCOTUS but is also responsible for our being unable to fix it. And imagine how much worse things would get if one of the two ailing liberals succumbed to their health problems. It is bad enough that we are dependent on either Kennedy or — much less likely — Roberts to cross over to avoid the various potential horrors like a ‘definition of and insistence on ‘traditional marriage.’ (And as I’ve pointed out, Hobby Lobby could serve as a precedent for allowing the teaching of Creationism — and that is a bit more important than it might seem.)
    But imagine if our only hope is that one of the two is willing not to make a decision but to ‘create a tie’ — as would be true during a period when the vote would be 4-3-Kennedy. And imagine, even with today’s Senate, how difficult it would be for Obama to get a choice through against Republican obstructionism and delaying tactics, hoping to stretch out that 4-3-K period.
    Jim, if we lose the Senate, if we don’t do everything we can to keep it — including maybe sending money if we have it, or working — even in another state — if we can take the time and the travel — then even the two of us atheists will be trying to figure out ‘who to pray to’ just to keep Breyer and Ginsburg alive.

  • Jim Reed

    The situation is dangerous and probably unpredictable. I look on the bright side. As long as a Democrat is president, we will not be starting a war with a nation who doesn’t want war because we want their oil. That was much worse than all that a bad congress and bad supreme court could ever do. This is a fixable problem. All we have to do is stop electing Republicans. It might take another generation in addition to the two it has already been, but at some point the heartland of America will wake up (as least partly) to how they are cutting their own throats by electing the party of the rich.