Scalia and the Hobby Lobby Case


Sahil Kapur writes about Justice Scalia’s majority opinion in Employment Division v Smith, a 1989 case that involved two Native American men who were denied unemployment benefits after being fired for using peyote. They argued that this violated their religious freedom and the court rejected that argument. Scalia argued strongly that religious exemptions from generally applicable laws were not required by the Free Exercise Clause.

“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness.

“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” he wrote, “ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination 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.”….

“To permit this,” he wrote in Smith, quoting from an old court decision, “would be to “To permit this,” he wrote in Smith, quoting from an old court decision, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

So that means he’ll have to rule that Hobby Lobby can’t have a religious exemption from the generally applicable Affordable Care Act, right? Not necessarily. In 1993, Congress passed the Religious Freedom Restoration Act, which provides a statutory basis for such exemptions even if there is no constitutional requirement for them, and it’s on the basis of that law that Hobby Lobby is making its claim. So Scalia could be entirely consistent and still vote in favor of Hobby Lobby on statutory grounds rather than constitutional grounds.

But that’s not really the end of it either. The Freedom From Religion Foundation and several other groups have submitted an amicus brief in the case arguing that RFRA is unconstitutional because it privileges religious beliefs and gives religious people a benefit not available to the non-religious, which is pretty similar to Scalia’s previous statement that such exemptions “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

But here’s the problem: The government is not arguing that RFRA is unconstitutional and that was not the grounds on which the appeal was granted. This is just one of dozens of amicus briefs and it makes an argument that the parties to the case do not make. So that provides Scalia with a way to ignore their argument, since it isn’t being made by either of the parties to the case. I have little doubt he will end up ruling in favor of the religious exemption in the end.

Comments

  1. Kevin Kehres says

    Because it’s his religion he’s exempting .,. duh.

    The man is transparent as glass.

  2. raven says

    According to the MSM, the case isn’t going well for the forces of light, i.e. Obama, women, and the ACA.

    We already know how Scalia will rule. Guy is a hypocritical right wing political hack pretending to be a judge.

    Just have to wait and see. But being an optimist hasn’t been too rewarding since Bush was elected at the start of the 21st century.

  3. tbp1 says

    He will almost certainly find a way to vote the way he personally prefers, even if it grossly contradicts his own previous votes and expressed opinions. It’s the way he works.

  4. Randomfactor says

    Another incidence of the Obama administration’s kowtowing to religion to the country’s detriment.

    Best we can hope for is some sort of narrow ruling compromise that lets HobbyLobby off the hook, I’m afraid.

  5. eric says

    Here is some coverage of the oral arguments. There may be better coverage out there, I just quickly googled it. But from the sound of it, Kennedy is leanding pro-HL, which is much more interesting (and disturbing) than Scalia leaning pro-HL.

    I have an amusing question/scenario. Let’s say that Hobby Lobby wins, and companies now have some sort of right to express “their” religion in their policies. So HL hires Aetna as its health insurance provider…and Aetna says that it has a religious right to offer contraception in its coverage policies. Aetna further states that, under federal antidiscrimination rules, HL cannot refuse to hire Aetna (or fire them) as a carrier based solely on Aetna’s religious beliefs. What happens? Giving corporations religious rights just opens up the can of worms of what happens when one corporations’ religious mandates clash with another corporations’ religious mandates.

  6. raven says

    Whose religious rights are being violating are the employees of Hobby Lobby.

    Why should I or anyone care one bit what Howard Green, the CEO believes or not?

  7. donalbain says

    Never mind religion. This is a case of big business vs the working class. Scalia will support big business.

  8. d cwilson says

    If Hobby Lobby wins, I predict many corporations will suddenly convert to becoming Christian Scientists and declare that offering any health benefits beyond prayer violates their religious beliefs.

  9. nora says

    This is such a troubling case. The issue is whether a corporation can be exempt from a law because of the religious views of the owners of the corporation. No. The corporation itself has no religious views. It’s a separate entity. The whole purpose of being a coproration is to make it a different entity from the owners.

    And the implications of an adverse ruling would be mind boggling. Companies could claim religous reasons for anything – paying women less than men, not hiring blacks at all, even not providing health insurance at all.

    If companies want to compete in the marketplace, they have to abide by the rules.

  10. says

    Why should I or anyone care one bit what Howard Green, the CEO believes or not?

    Because the feudal lord gets to decide the opinions of his vassals, of course!!

  11. eric says

    @8 – just going by what’s in the MSN link I provided, it sounds like Roberts may be considering some sort of limitation on the sort of companies that can claim religious exemptions. Specifically, a company must be ‘closely held’ to claim it, which I interpret to mean that somebody religious has to own a controlling interest in it. That would still be a terrible exemption, but it would prevent broadly owned corporations from playing these shenanigans.

  12. raven says

    Why should I or anyone care one bit what Howard Green, the CEO believes or not?

    Because the feudal lord gets to decide the opinions of his vassals, of course!!

    True.

    But the lord of the manor has to be careful. A crowd of peasants with torches and pitchforks can always storm the castle if things get too bad. We’ve done it before.

  13. says

    I’m optimistic. Regardless of the outcome, this discriminatory practice will be confronted in the free market ( I am NOT a libertarian of any stripe, I despise that ideology). This will give a hiring and marketing advantage to stores like Michael’s or A.C. Moore, two chains that sell the same kinds of merchandise. (as long as they don’t follow suit. Then there’s the power of boycott bouyed by the wunnerful innernets. AND online shopping. This will NOT go well for Hobby Lobby in the end. They will (like the CEO of Chick-fil-A who retracted his statements after damage had been done) wish they had kept their motherfucking mouths shut. All of these jerks WAY underestimate how progressive many americans have become… And this shameful behavior from an ART SUPPLY store? That primarily caters to WOMEN?… Oh Hobby Lobby, you have done gone and fucked yourself. Enjoy your little self-righteous 15 minutes of celebrity. ignomy

    BTW I do realize the larger implications of this ruling at stake… Just keeping myself out of the despair vortex…

  14. says

    d cwilson “If Hobby Lobby wins, I predict many corporations will suddenly convert to becoming Christian Scientists and declare that offering any health benefits beyond prayer violates their religious beliefs.”
    Really? My company, MoCorp, is going Awesomeolgy. Wing Wednesdays, ice cream cake, keg stands, silly hats, joyously and fearfully awaiting the inevitable return of the Shadowy Ones from Darkness which is also Shadowy who’ll drag us back to Darkness and there feast on Our Flesh and Souls for ever and ever more…about the only thing we don’t have a stance on is ladyparts. It’s pretty awesome.

  15. eric says

    @14: maybe, but I have my doubts a successful boycott can be maintained for “they don’t give their employees contraception coverage.” I fear that concern will seem pretty psycholgically distant and unimportant to many consumers. McCathy’s comments (which got Chick-fil-A in trouble) were about same sex marriage laws – i.e., about something that would directly affect the people buying his sandwiches. HL’s policy on health coverage doesn’t. So a boycott may be a harder sell.

  16. says

    A Waterchapel “Modusoperandi@15: Awesomeolgy? So …. close. So, so close.”
    Probable needs another “o” somewhere. Close enough. I was distracted by the 2:30 Conga Line. It’s not even 2:30. That’s how Awesomeolgy rolls.
     
    “I’m convinced that was a typo, and you really wanted an ‘r’.”
    Awesomeolgy doesn’t need an “r”. Do you know how tough it is to make an orgy-having corporation pass ISO9000?

  17. raven says

    And this shameful behavior from an ART SUPPLY store? That primarily caters to WOMEN?… Oh Hobby Lobby, you have done gone and fucked yourself. Enjoy your little self-righteous 15 minutes of celebrity. ignomy

    You didn’t need to convince me.

    I have no intention of ever setting foot in a Hobby Lobby or Chick-fil-a.

  18. laurentweppe says

    But the lord of the manor has to be careful. A crowd of peasants with torches and pitchforks can always storm the castle if things get too bad. We’ve done it before.

    That’s actually part of the problem: the upper-class is filled with nincompoops who’ve convinced themselves that plebeians are murderous, envious little fuckers who’d love nothing more than committing a class-based genocide and whose lack of firepower is the only thing stopping them from burning the gated communities to the ground.

    The peasants have not stormed the castle because we’re stronger than them and we must keep beating them to ground so they never get any idea” unfortunately tends to passes as common wisdom among my social class.

  19. says

    #8: I was thinking seriously about what would happen if a business owner decides to convert to another religion. If he or she becomes a Jehovah’s Witness, can he suddenly stop coverage for blood transfusions? Or, like you said, the owner becomes a Christian Scientist, can he stop all medical insurance? Can a Catholic convert suddenly stop covering birth control, sterilization, and abortions? The number of worms in this can just keep growing and growing.

  20. eric says

    From the description of the Conestoga case from the SCOTUS web site:

    The question presented is:
    Whether the religious owners of a family business, or their closely-held, for-profit
    corporation, have free exercise rights that are violated by the application of the
    contraceptive-coverage Mandate of the ACA.

    I bring that up because the supreme court could avoid all the issues about JWs or CSs by ruling narrowly. If they rule “yes, their rights were violated by the contraceptive coverage of the ACA” then that doesn’t necessarily open the door on blood transfusions or other medical treatments. That ruling would still suck and be wrong (not to mention inconsistent with rulings that said requiring blood transfusion coverage doesn’t violate religious rights), but hey, they might decide to thread the needle that way.

  21. abb3w says

    From the oral argument, it looks like Kennedy will be the swing vote; and since except for the existence of the Hyde Amendment and related laws, the arguments could also be used to require Hobby Lobby cover abortion, he appears inclined to reject it. Which sucks.

    At this point, the best chance of an outcome favorable to women seems to be from the actuarial risk that one of the four Justices on the right dies before the ruling comes out.

    @5, eric

    There may be better coverage out there, I just quickly googled it.

    There’s a decent roundup at the SCOTUS Blog, along with a link to the SCOTUS transcript.

  22. naturalcynic says

    just have to wait and see. But being an optimist hasn’t been too rewarding since Bush was elected at the start of the 21st century.

    A reminder that Bush won the election 5-4

  23. smrnda says

    I think Scalia’s previous decision was that it was workers, not the employer wanting the exception. The other way around I don’t think he’s care so much.

  24. Michael Heath says

    Justice Kennedy’s spittle-fueled irrational dissent in the Obamacare case is reason to be concerned here. He was nihilistic in his opinion, a behavior I don’t recall him displaying in any prior cases.

    I think the issues on this case could be far more grave in their broad implications than the Obamacare case; will that cause J. Kennedy to judge with prudence? In the Obamacare case he led the charge to go full-wingnut. Let’s hope J. Thomas leads a full wingnut charge extreme enough to move Kennedy on the side that protects individual rights.

  25. comfychair says

    What really makes me angry about these cases (and the related ‘religious freedom’ laws being passed/proposed), these idiots want all the benefits of a secular society and the level of civilization it provides, but they want nothing to do with the responsibilities that come with living in that civilization. If they were packing up their shit to go live in an isolated community somewhere so they would be able to avoid the ‘wickedness’ they see all around them, then fine. Pack up and go. Go be like the Amish. But to want the benefits of public roads, and water/sewerage, and regulated utilities, and police protection, and on and on and on, and then whine about how someone else who they happen to disagree with coexisting in that same world is a violation of their ‘sincerely held religious beliefs’… oh for fuck’s sake. Get over it. Shit or get off the pot, bunch of phony whining sociopathic sanctimonious hypocrites. Live here, with everybody, or don’t. You don’t get to pick and choose who you inhabit this world with.

  26. says

    @29;

    Well, to be fair, it’s not just abortionloverz and teh homoz that they want to be free from. They also don’t want to: drink out of the same drinking fountains as black people; be forced to pay a living wage; follow FMLA guidelines in granting maternity leaves and other time off for people with ailing relatives and the like–I mean NONE of that shit is in the bibile.

  27. Anri says

    I was thinking seriously about what would happen if a business owner decides to convert to another religion. If he or she becomes a Jehovah’s Witness, can he suddenly stop coverage for blood transfusions? Or, like you said, the owner becomes a Christian Scientist, can he stop all medical insurance? Can a Catholic convert suddenly stop covering birth control, sterilization, and abortions? The number of worms in this can just keep growing and growing.

    I believe the answers are: No, No, and Yes, respectively.
    Due to JW’s and CS’s being weird quasi-Christian cults while Catholicism is the Loyal Opposition to the One True American Faith.
    Because Mother Teresa y’see.

  28. billyeager says

    If they were packing up their shit to go live in an isolated community somewhere so they would be able to avoid the ‘wickedness’ they see all around them, then fine. Pack up and go. Go be like the Amish Puritan Settlers.

    That’s the problem, they are less like the Amish and more like the Puritans, demanding that everyone live by their pious-when-it-suits-‘em standards.

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