Hobby Lobby decision protects free exercise of religion but could boomerang

What the court gives, the court could take away.

By Marv Knox

Hailed by conservative Christians as a victory for religious liberty, the Supreme Court’s Hobby Lobby decision provides points to ponder, as well as occasion for both celebration and concern:

• Since the court previously ruled corporations may possess the same free-speech rights as individuals, the outcome of this case involving the exercise of religion was not surprising.

• Conservative Christians should quit complaining about the erosion of U.S. religious freedom. The court is on a roll protecting the free exercise of religion.

• This case strengthened the standing of the enormously valuable Religious Freedom Restoration Act.

• But beware the repercussions of Hobby Lobby. Even if you agree with this court, a future set of justices could turn the religious world upside down.

The case, in brief

In Burwell v. Hobby Lobby Stores, the Supreme Court ruled in favor of a closely held private company’s right to an exemption from some portions of the Affordable Care Act’s contraception mandate.

The Green family of Oklahoma City — owners of the Hobby Lobby craft stores — objected to providing four of the 20 contraceptive procedures included in the Affordable Care Act’s insurance mandate. They believe those four treatments are abortifacients, which prevent a fertilized egg from developing and thus cause abortions. As conservative Christians opposed to abortion, they contended the ACA mandate for these treatments violates their religious rights.

A key counter-claim asserted the Greens’ protest lacks merit. Since Hobby Lobby is a for-profit company, it does not operate under the same religious-liberty protections as individual citizens enjoy, they contended. So, current law binds a for-profit company, and the Affordable Care Act requires provision of all the contraceptive treatments.

In a 5-4 decision, the Supreme Court agreed with the Greens. Although Hobby Lobby is a for-profit corporation, it is a closely held private company and as such merits religious-freedom protection, the court said. It also determined the ACA violates the Religious Freedom Restoration Act.

That law stipulates, “Government shall not substantially burden a person’s exercise of religion … .” Once that is shown, the law provides an exception only when two conditions are met: Any burden on the free exercise of religion must be necessary to further “a compelling government interest” and it may only do so in the least-restrictive way possible.

The court ruled requiring Hobby Lobby to pay for insurance coverage that provides what the Greens see as abortifacients violates their religious liberty. And it ruled the competing claims of employees’ health care needs could be met by less-restrictive means — government provision of that part of the insurance coverage.

Outcome predictable

This ruling should not have surprised observers who paid close attention to Citizens United v. Federal Election Commission. In that 2010 case, the Supreme Court ruled the First Amendment provides free-speech protection to corporations, associations and labor unions that purchase political advertising. In short, it equated these large organizations with individuals and said they should receive the same guarantees of freedom granted to ordinary people.

Of course, Hobby Lobby is a different type of organization than Citizens United, a conservative lobbying group. But if the court’s reasoning in the Citizens United case granted individual protections to a huge organization comprising thousands of contributing members, then application of such logic to Hobby Lobby — a family-owned business — was not entirely unexpected.

And since religiously affiliated organizations already receive ACA accommodations, then a closely held private business — seen to merit the same protection as individuals — surely would win the case.

Time to stop complaining

The Hobby Lobby case should put to rest conservative Christians’ complaints of “persecution” and erosion of religious liberty in America. It’s the third case in three years in which the high court reinforced the free exercise of religion. This court may be split, but it solidly affirms religious freedom.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al., the court voted 9-0 to support free exercise of religion. The court ruled in favor of a church-run school that fired a teacher. The former teacher contended she was entitled to challenge her firing in civil court. But the Supreme Court applied the “ministerial exception,” which states civil courts do not have jurisdiction in lawsuits between ministerial personnel and their employers.

A friend-of-the-court brief filed by the Baptist Joint Committee for Religious Liberty in that case contended the ministerial exception is a “clear and crucial implication of religious liberty, church autonomy and the separation of church and state.” The Supreme Court overwhelmingly agreed.

Earlier this year, in Town of Greece v. Galloway, the court voted 5-4 that official prayers at the beginning of municipal meetings may be constitutional. The court compared such prayers to the traditional chaplain-led prayers offered during sessions of Congress and state legislatures, where members of the public are mere observers.

Opponents, such as the Baptist Joint Committee, expressed concern such prayers violate the consciences of religious minorities who attend and actually participate in the meetings. The BJC’s brief made a distinction between observers and participants. The participants, who must attend the meetings, become a de facto, if unwilling, congregation for the ministers who offer the prayers. But the justices provided support for majoritarian expressions of Christian faith in government meetings.

And now we have the Hobby Lobby case. The court came down on the side of a conservative Christian family who owns a multi-million-dollar business.

While adherents of minority religious faiths — such as non-Christians in Greece, N.Y., and employees of family-owned businesses who do not agree with their Christian bosses — may have reason to worry about the practice of their religious faith, conservative Christians are on a legal roll.

It’s time for them to quit whining about losing their religious liberty and feigning persecution.

Good news for RFRA

The undisputed positive outcome of the Hobby Lobby case is the Supreme Court’s affirmation of the Religious Freedom Restoration Act. This case turned on RFRA, and the justices affirmed the 20-year-old law, enacted during the Clinton Administration.

So, government cannot “substantially burden” a person’s free exercise of religious faith. And if in the extreme case religious exercise must be limited, government must demonstrate it has a compelling interest in doing so and must act in the least-restrictive means possible.

This case provided another precedent to support RFRA, one of the most important laws of the late-20th century and, outside of the First Amendment, the strongest guarantee of religious liberty.

Still, stand guard

Although the Hobby Lobby case provided a significant decision on religious liberty, it’s not the definitive decision. Other religion cases will come before the court, and liberty will be at stake. Hobby Lobby points to two causes for concern.

First, as part of the 2014 trend — including Town of Greece v. Galloway — the court has shown a propensity to favor majoritarian religion. In this case, that’s conservative Christianity.

Baptists and others who treasure historic principles of religious liberty and church-state separation will be concerned, lest the consciences of religious minorities and people of no faith be trampled. That certainly could happen in the shadow of the Town of Greece precedent.

But while the court took pains to limit its findings to the specific details of the Hobby Lobby case, that decision also could pose threats to freedom. This could occur if business owners claim other religious beliefs — such as opposition to vaccinations or the inferiority of women or certain races — trump the rights of employees.

Beyond that, what may happen as demographics — and religious preferences — change? Faith groups who are protected today may not be protected similarly tomorrow.

Second, what the court gives, the court can take away. Some pundits have opined the Supreme Court has set itself up as the sole arbiter of religious orthodoxy. That’s an extreme interpretation that simultaneously ignores the fact the Supreme Court always has been assigned the task of making hard calls.

This court handed down a volume of unanimous decisions not seen since the 1940s. Still, in divisive cases, the justices also followed the political lines of the presidents who appointed them. We live in a politically fractious era that may see even greater division before glimpsing renewed signs of unity. If the court follows suit, who is to say religious liberty cases will not be politicized even further?

OPINION: Views expressed in ABPnews/Herald columns and commentaries are solely those of the authors.