Marci Hamilton on the Hobby Lobby ruling.

It is simply a fact that five male Catholic Supreme Court Justices have now transformed what is already a bad law into a truly dangerous one, all for the apparent purpose of undermining women’s access to contraception. Whatever the legal reasoning, the optics are very bad on this one, and whether intentionally or not, they stoke the perception that the Justices are in league with the Catholic bishops in the latter’s attempt to turn the clock back on not just Roe v. Wade but also Griswold v. Connecticut, as Leslie Griffin argues here. 

Oh surely not. Just because they’re all Catholic and…

…wait…

This is, in fact, a sly opinion that not only delivers free exercise rights to for-profit corporations without meaningful consideration of the impact on their employees but also renders an interpretation of key elements of RFRA that render it a mightier sword than it ever was. RFRA’s ugly underbelly and its pretense to reflect the First Amendment are now in full view. 

Emphasis added. Along with the male bias and the Catholic bias there’s perhaps also the employer class bias. Why is it employers who get to impose their religious beliefs on employees and not the other way around? Why are the employees treated as inert objects that the employers get to push around as they like?

Hamilton wryly thanks the court for being honest about its move to make RFRA even worse than it already was.

We can now rid this debate of those who keep trying to dress this RFRA wolf in sheep’s clothing with statements like, RFRA merely codified what has been “the law for 50 years.” No, this has been the law for a few years, and it has been a bad law that is driving our culture to unprecedented discord and Balkanization. The United States’ successful, long-honored balance between religious freedom and the rule of law was displaced by RFRA, which invites religious adherents to demand a right not only to believe and practice but also to impose their beliefs on others.

And who are those others? We are; all of us. We have met the others and they are us.

This decision reveals RFRA in all its subversive and ugly glory. It empowers the powerful at the expense of the vulnerable. It invites believers to impose their beliefs on others. It is a weapon.

Justice Ginsburg is correct that the majority provided a “decision of startling breadth,” possibly applying 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 (Christian Scientists, among others).”

The tide in favor of RFRA has turned, though, with the progressive groups that supported the religious groups to obtain RFRA’s passage in the first instance awake to RFRA’s inherent dangers. It is heartening to see the likes of the ACLU and Americans United for Separation of Church and State and Planned Parenthood taking a stand against extreme religious liberty. And they are now joined by gay rights groups and children’s advocates who deeply understand the harm that can be done in the name of religion.

RFRA should be repealed before we further test the limits of the insatiable demands for religious liberty at the expense of too many others. 

Well, we can dream.