Justice Ruth Bader Ginsburg's dissent in the Hobby Lobby case was long. And some might say, lyrical. It also forebode a series of unintended consequences that could flow from the majority's holding: closely held corporations have religious rights and therefore, can't be forced to violate their religion by providing contraceptive coverage.
What does this hypothetical "parade of horribles" contain? And how likely are these predictions to come true?
Big Corporations Get Exemptions, Leaving Government With the Tab
Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood--combined with its other errors in construing RFRA--invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
Although the majority argued that "it seems unlikely" that large corporations will pull a Hobby Lobby and try to opt out of covering the cost of contraceptive coverage, Ginsburg argues that this is completely possible: even within the narrow confines of "closely held" corporations, there are massive employers out there, such as Mars (72,000 employees, $33 billion in revenue), and Cargill (140,000 employees, $136 billion in revenue). Plus, there's the possibility of infighting in these corporations over defining the corporation's religious values, with courts having to step in and decide which owner's religious views should win out.
RFRA Goes Beyond Healthcare Laws, Allows Discrimination
Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc. (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration); In re Minnesota ex rel. McClure (born-again Christians who owned closely held, for profit health clubs believed that the Bible proscribed hiring or retaining an "individua[l] living with but not married to a person of the opposite sex," "a young, single woman working without her father's consent or a married woman working without her husband's consent," and any person "antagonistic to the Bible," including "fornicators and homosexuals"; Elane Photography, LLC v. Willock, (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple's commitment ceremony based on the religious beliefs of the company's owners). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn't the Court disarmed from making such a judgment given its recognition that "courts must not presume to determine ... the plausibility of a religious claim"? (citations omitted)
Those three examples, from the 1960s, 1980s, and this year, all show one thing: people have always found excuses to discriminate, and probably always will. With the RFRA allowing companies to have religious rights, and with those religious rights trumping a compelling government interest in contraceptive coverage here, who's to say it won't happen with employment laws, or other anti-discrimination laws?
Well, one might argue that in this case, it was a narrow tailoring issue -- there was a easy, ready-made solution in the form of a government program for religious organizations that objecting employers could fit in to. That's not going to be the case with a racist restaurant owner, or a discriminatory photographer.
Every Religion Seeks Coverage Exemptions, Litigation Ensues
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives 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 (Christian Scientists, among others)? According to counsel for Hobby Lobby, "each one of these cases ... would have to be evaluated on its own ... apply[ing] the compelling interest-least restrictive alternative test." Not much help there for the lower courts bound by today's decision.
This one is pretty self-explanatory: Hobby Lobby got out of providing contraception because it has Catholic owners. What about a business owned by people of other faiths -- will they get their own special Obamacare exemptions, forcing the government to cover random chunks of policies for vaccinations, transfusions, and pig-sourced therapies? Even if that isn't the case, will it lead to a wave of docket-clogging litigation?
- Burwell v. Hobby Lobby (FindLaw's Caselaw)
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