Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision

By Anya Arndt

supreme courtReligious freedom in the United States will never look the same again; while the majority of Supreme Court justices believe that their ruling on the Burwell v. Hobby Lobby case will not be taken to extremes, history tells us otherwise. In fact, it was unexpected consequences of the ruling on the Citizens United case that partially allowed the Burwell v. Hobby Lobby ruling to turn out as it did. When Citizens United is boiled down to its fundamental principle that corporations have the same rights as individuals, it translates into the Supreme Court’s ruling on the side of Hobby Lobby as a corporation with religious beliefs. As I will explain, the Hobby Lobby ruling has provided fertile battle ground for those insisting that the right to discriminate is covered under religious freedom. Since corporations are now protected under the Religious Freedom Restoration Act, it will not be long before we see advocates of “freedom to discriminate” working to make it legal for businesses across the country to discriminate against customers and deprive employees of rights, as long as those can be founded in “sincerely held religious belief.”

The Burwell v. Hobby Lobby case can be simplified to a single question: whether or not Hobby Lobby, a corporation owned by individuals with particular religious beliefs, qualified for an exemption under the Religious Freedom Restoration Act (RFRA). RFRA, codified in 1993, exists to prevent the establishment of laws that substantially burden the free exercise of religion (as protected in the First Amendment).[1] In efforts to protect the exercise of religious freedom, the Supreme Court has often had to assign the nebulous standard of “sincerely held religious belief” to make rulings.[2] While the beliefs of the Green family concerning abortion in Burwell v. Hobby Lobby are not scientifically accurate, they are, arguably, sincerely held; had the Supreme Court decided that the Green family’s beliefs were not sincere, they could have rejected the case. But what is sincerely held religious belief in the context of the American justice system? Courts often look to things like longevity of belief and consistent adherence to the tenets of that belief to determine sincerity; in agreeing to hear the Hobby Lobby case, it was understood that the Supreme Court found the Green family’s beliefs to be sincere.[3] Since sincerity was already assumed, what the Supreme Court had to decide was whether or not complying with the legal mandate of the Affordable Care Act would impose a substantial burden on the owners of the business. If a law poses such a burden, the constitutionality of the law hangs on whether or not there is a compelling state interest to keep the law in place as is. This is all in accordance with what is known as the “Sherbert Test,” developed following the 1963 Supreme Court case of Sherbert v. Verner, which was reinstated, after being curtailed in the 80s, by RFRA.[4]

10775-hobby lobby for cms.800w.tnTo state the case simply, Hobby Lobby claimed that the fine it would incur, under the Affordable Care Act, for following its religious convictions to not provide all forms of birth control was substantial. Ultimately, the majority of the Supreme Court justices agreed, deciding that the government could not justify such an imposition on the faith of the corporation/owners of the corporation. Thus, the ruling determined that the law did indeed pose a substantial burden, and that the government should provide another option to for-profit organizations with sincerely held religious beliefs. Corporations are now protected under the Religious Freedom Restoration Act.

This ruling is cause for much concern; beyond the obvious implications for women’s health care, the ruling also sets a precedent. Because the legal system in the United States relies so heavily on precedent, the ruling in one case can affect the outcome of another seemingly unrelated case, and this is why the Hobby Lobby decision is so disturbing. For example, the majority opinion in Citizens United, a case about campaign finance, insisted that the ruling was only upholding the First Amendment, but, as mentioned above, the implications of that ruling meant that the Hobby Lobby case was heard and corporations are now able to hold religious beliefs equal to (and arguably more important than) those of citizens and corporation employees. The same is true of the recent Supreme Court ruling in Shelby County v. Holder, which gutted key aspects of the Voting Rights Act of 1965. The majority opinion in this case suggested that aspects of section four of the act were no longer necessary to protect voters from discrimination, and were therefore unconstitutional. Despite this opinion, within hours of the ruling, officials in states that were previously bound by regulations of the Voting Rights Act began pledging to enforce suppressive voter ID laws that would not have been cleared under the 1965 act. Like in the Citizens United and Shelby County cases, the majority opinion in the Hobby Lobby case rebukes the possibility that this ruling will set yet another dangerous precedent making room for discrimination, but history has shown that such an opinion is far too optimistic. In the dissenting opinion, Justice Ruth Bader Ginsburg decries the majority opinion with this exact concern: “The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporation ‘will often assert [Religious Freedom Restoration Act] RFRA claims.’”[5]

The possibility this precedent poses is a particular threat because there have been so many religious liberty cases recently in regards to providing services to people (and particularly couples) identifying as Lesbian, Gay, Bisexual, and Trans* (LGBT). Fortunately, many of these “freedom to discriminate” cases have already been shut down on the state level, but the Supreme Court’s decision could certainly invigorate those who have not yet brought their cases to court. Additionally, on the employment level, as President Obama appears to be growing closer to signing an executive order barring discrimination against people who are LGBT by companies doing government work, more and more organizations are demanding that a faith exemption be included in the order. The implications of the Hobby Lobby ruling can spell disaster for these matters in terms of LGBT equality. Because of the Hobby Lobby ruling, groups advocating for a religious exemption to LGBT inclusion practices have more ground on which to base their argument. On the other side, LGBT advocacy groups have become so critical of religious exemptions in anti-discrimination laws since the Supreme Court’s decision, that many have even withdrawn support from the current iteration of the Employment Non-Discrimination Act, currently being held up in the House of Representatives. “As currently drafted, ENDA contains a provision that allows any religious organization that qualifies to discriminate on the basis of religion — e.g., a Catholic group is permitted to only hire Catholic employees — to also continue discriminating against LGBT workers.”[6] Recognizing the danger of the precedent set by the Hobby Lobby ruling, many pro-equality groups are worried about giving any more ground to those who insist upon their religious freedom to discriminate.

Ruth Bader GinsburgThe reality of the Hobby Lobby case ruling is, as many political bloggers have pointed out, that corporations owned by people with religious convictions have more rights and freedoms than the individual employees of those corporations. The implications of this ruling could be numerous. For example: if corporation owners can deny their employees the right to health care on religious grounds, what is to prevent them from refusing services to particular customers on religious grounds? Or, if closely-held for profit companies can have religious beliefs, can publicly-traded companies hold religious beliefs? Furthermore, if corporations are protected under the first amendment, are they protected under the second amendment? Finally, there is the question of whose faith is covered, as Justice Ginsburg points out in the dissenting opinion: “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by [this] decision.”[7] The list of questions goes on, and in time we will see the extent to which this landmark ruling will affect the daily lives of U.S. citizens. For now, however, it is safe to say that religious freedom, as we knew it, is gone in the United States.

References:

[1] Lutz, Zak. “Limits of Religious Freedom.” May 27,2013. Harvard Political Review. http://harvardpolitics.com/covers/religion-and-politics/limits-of-religious-freedom/

[2] Collins, Richard. “Religious Freedom and Obamacare.” Lecture, from UCCS, Colorado Springs, April 10, 2014.

[3] ACLU. “Know Your Rights: Freedom of Religion.” November 2012. https://www.aclu.org/files/assets/know_your_rights_–__religion_november_2012_0.pdf.

[4] Collins, Richard. Religious “Freedom and Obamacare.” Lecture, from UCCS, Colorado Springs, April 10, 2014.

[5] Allon, Janet. “10 Blistering Highlights from Justice Ruth Bader Ginsburg’s Hobby Lobby Dissent.” July 1, 2014. Alternet. http://www.alternet.org/civil-liberties/10-blistering-highlights-justice-ruth-bader-ginsburgs-hobby-lobby-dissent.

[6] Ford, Zack. “Following Hobby Lobby, Some LGBT Groups Abandon Workplace Nondiscrimination Bill.” July 8, 2014. ThinkProgress. http://thinkprogress.org/lgbt/2014/07/08/3457967/lgbt-groups-drop-enda/.

[7] Liebelson, Dana. “The 8 best lines from Ginsburg’s dissent on the Hobby Lobby contraception decision.” June 30, 2014. Mother Jones. http://www.motherjones.com/politics/2014/06/best-lines-hobby-lobby-decision.


2 Replies to "Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision"

  • Ken
    July 16, 2014 (8:40 am)
    Reply

    A very astute commentary raising a very relevant question: With something as subjectively nebulous as a religious belief being a criterion for limiting rights, where does it end? When does “religious freedom” morph into freedom to discriminate? As the writer points out, this becomes particularly problematic when even an impersonal entity like a corporation is ascribed a religious conscience. Thank you for an insightful commentary.

  • William I Brown
    July 30, 2014 (11:48 am)
    Reply

    Certainly a well written, well thought out paper. I do agree that we are going to see a great deal more litigation around this whole issue. The nebulous phrase, religious belief, can represent so many stands to justify an act of discrimination under the guise of freedom of religion. We saw this in the South in the pre 60’s when religious leaders somehow justified laws, such as the Jim Crow laws, based on Blblical phrases. I do fear for the gay community; once again will become the target of discrimination, now based on religous convictions. Yes, the small bakery can feel more confident to refuse to bake a wedding cake for a gay couple, based on a sincerely held religious belief.


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