In March 2007 Barack Obama bragged, as he has on other occasions, that “I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.” Of course, many much more prominent and prolific Obama-supporting law professors (easy, since Obama published nothing on the subject) do not “respect the Constitution” — see, for example, the University of Texas’s Sanford Levinson in the New York Times, “Our Imbecilic Constitution” — but whatever subjective respect President Obama may feel is not detectable in the arguments his administration has made in the Supreme Court.
Those arguments have been rejected unanimously twelve times since January 2012 on “a wide range of issues,” Prof. Ilya Somin points out, “including freedom of religion, property rights, executive power, and the Fourth Amendment.” Even a unanimous Court can be wrong, Somin adds, but “when the president’s position in multiple major constitutional cases cannot secure even one vote on an ideologically and methodologically diverse Court that includes two of his own appointees, it is likely there is something wrong with the administration’s constitutional worldview.”
Today’s 5-4 decision in the Hobby Lobby case was not unanimous, but it was yet another striking rejection of the Obama administration’s overreaching aggrandizement of executive power. The majority opinion by Justice Alito emphasized the limits on what the Court held, noting that the decision “concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Others, on both left and right, disagree. Justice Ginsburg begins her long, alarmed, some would say alarmist dissent by asserting, directly contrary to the majority’s assurances, that “[i]n a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” From the other side of the spectrum Curt Levey of the Committee for Justice believes Justice Ginsburg is right. He calls it “a game-changing decision,” adding that its “groundbreaking nature makes it a landmark victory for religious liberty and freedom of conscience that will have a major impact for decades to come.”
Time, as usual, will tell, and in fact may be telling already. After asking whether the new religious exemption goes “far enough” and noting that its accommodation of the religious views of business owners may itself need “an added accommodation to make it acceptable to them, and to make the birth control mandate legal,” Lyle Denniston points out that immediately after Monday’s decision the Eleventh U.S. Circuit Court of Appeals blocked all enforcement of the mandate against a non-profit Alabama Catholic TV network.
Having just succumbed to one cliché (“time will tell”), please indulge me in one more: the Hobby Lobby landscape is populated by so many thick and fascinating trees, any one of which merits extended attention, that it is difficult to see the forest. A few examples (the dissenters, of course, disagree with the holdings given in parentheses below, except the first one):
• Is providing free contraceptives (including abortifacients) a compelling government interest? (Assumed)
• Is forcing employers to violate their beliefs by providing the contraceptives the least restrictive means of achieving the government’s purpose? (No)
• Are for-profit corporations “persons” for purposes of the Religious Freedom Protection Act? (Yes)
• Can for-profit corporations “exercise religion”? (Yes)
• Does the decision create a slippery slope of exemptions for many employers from a wide of array of obligations such as providing vaccines or following anti-discrimination laws? (No).
This is not the place, and I am not the person, to analyze these (and other) Hobby Lobby legal issues. For those interested in pursuing the legal high timber as well as the dense undergrowth I highly recommend the learned commentary gathered by SCOTUSblog, here and here; the commentary on the Washington Post’s Volokh Conspiracy blog; and the pre-decision analysis offered by liberal University of Chicago law professor Geoffrey Stone and conservative Stanford law professor (and former 10th Circuit Judge) Michael McConnell.
I do think it worth mentioning, however, that both Prof. McConnell, widely regarded as one of the two most eminent legal scholars on religion, and University of Virginia law professor Douglas Laycock, the other one (discussed in a related context here), have both offered compelling arguments that corporations can “exercise religion” and that the parade of horribles predicted by opponents and, now, dissenters is mistaken. (See McConnell’s amicus brief for Christian booksellers and Laycock’s “Congress answered this question: Corporations are covered” as well as his amicus brief for several religious organizations.) It would be amusing to watch the attempt of those like the dissenters here who insist that corporations do not have the ability to “exercise … religion” try to explain how it is nevertheless possible for a corporation that refused, say, to hire Muslims to be guilty of violating laws against religious discrimination.
I will limit myself to mentioning only one legal point that caught my attention. Responding to the dissenter’s fear that the decision would unleash a torrent of racial discrimination in hiring “cloaked as religious practice to escape legal sanction,” Justice Alito wrote for the majority that
Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. [Emphasis added]
It would be nice if in the future the Court made it clear — and universities and other employers understood — that there is no “compelling interest” whatsoever in employment and other decisions made with regard to race.
The Forest, Not The Trees
Like all cases, Hobby Lobby was a controversy before it was a case, and it is that longstanding and ongoing controversy — whether religious beliefs and practices deserve any special deference and protection — that is the forest that is far more significant than the particular issues in dispute in the case. Just as the armies that clashed at Gettysburg were fighting over something far more fundamental than who controlled Little Round Top, the forces arrayed against each other in Hobby Lobby are not fighting primarily over free contraception (even abortifacients, the only contraceptives to which the owners of Hobby Lobby objected), which could have been provided in other, less burdensome ways (the government pays directly for many goods and services it regards as far less “compelling” than contraceptives).
Ultimately they were contesting nothing less than the role of religion in American life, whether or not institutions whose values and practices reject the (currently) dominant progressive ideology can be allowed to function. It is highly revealing, for example, that Jonathan Rauch, a liberal commentator much more sympathetic to religion than most liberals, describes religion-based efforts to be free of the yoke of government as “The Great Secession.”
Like all highly charged controversies in America over rights and privileges, this one has a long, tortuous legal and hence Constitutional history wrestling with the inherent and irresolvable tension built into the First Amendment — how to refrain from burdening the “free exercise”of religion without at the same time “establishing” religion by giving it privileges denied to the non-religious.
Trying to follow the Supreme Court’s bounces back and forth on this issue is enough to make your head spin. Some highlights:
• Should a Mormon Church leader be convicted for violating the law against bigamy? (Yes, Reynolds v. United States, 1879)
• Since Orthodox Jews are forbidden by their religion to work on Saturday, can they be forced by blue laws also to close on Sundays, putting them at a competitive disadvantage? (Yes, Branufeld v Brown, 1961)
• Is a member of the Seventh-Day Adventist Church fired because her religion forbade her to work on Saturdays and who for that reason could not find other work eligible for unemployment compensation? (Yes, Sherbert v. Verner, 1963)
• Can members of the Conservative Amish Mennonite Church who sincerely believe that high school attendance is contrary to the Amish religion and way of life be convicted of violating compulsory school attendance laws for withdrawing their children from school after the eighth grade? (No, Wisconsin v. Yoder, 1972)
• Are employees who were fired because they ingested peyote for sacramental purposes of their Native American Church eligible for unemployment compensation? (No, Employment Division v. Smith, 1990)
• Can a church or religious organization fire a ministerial employee for any reason, including reasons that would violate anti-discrimination laws if done by a secular employer? (Yes, emphatically: 9-0, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 2012)
In order to correct what was regarded as the injustice of Employment Division v. Smith, Congress voted overwhelmingly (the House was unanimous; there were three dissenters in the Senate), and President Clinton signed the Religious Freedom Restoration Act in 1993, providing among other things that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” That Act was declared unconstitutional as applied to the states, City of Boerne v. Flores (1997), but its commands still apply to the federal government (and a number of states that have passed similar statutes) and was successfully relied on by the owners of Hobby Lobby.
Douglas Laycock has usefully described the doctrinal conflicts in the free exercise religion cases as falling into two schools: “One … is that religious liberty is an equality right. Religious liberty consists of not being discriminated against: the law that applies to any religious minority will be the same as the law that applies to anybody else, and as long as that criterion is satisfied, religious liberty is fully protected.” The competing version is that the free exercise of religion is “not merely a right to non-discrimination, but that it is a liberty right. It is a substantive right not to be regulated with respect to certain matters that are very important to the individual.”
Oddly, the ideological adherents of these two schools have played musical chairs over the years. The “non-discrimination” principle has been most closely identified with Justice Scalia’s majority no-to-peyote opinion in Employment Division v. Smith, but now it is the standard raised by the liberals while the conservatives have generally embraced the protecting liberty model. For some as yet unexplained reason the liberals who insist on the neutral, non-discrimination principle when religion is involved abandon that principle when, well, actual discrimination is involved, such as affirmative action policies that involve state agencies dispensing benefits and burdens on the basis of race.
In sum, the Court’s doctrine on religious freedom has resembled a pendulum swing much more than a straight, or even uneven, line, and I think both the hope and the fear that the pendulum will stop swinging with Hobby Lobby is misguided.