A narrow decision on Hobby Lobby

07/01/2014 5:59 PM

07/01/2014 6:00 PM

Given the conflicting interpretations and sometimes hyperbolic reactions to Monday’s Supreme Court decision in Burwell v. Hobby Lobby, it’s easy to get caught up in the politics obscuring the 49-page opinion.

But once you cut through the partisan haze, a few things about the decision quickly become apparent: Namely, the 5-4 ruling that has caused ecstasy and hand-wringing among fans and critics is both narrow and painstakingly crafted. Its authors were even careful to address many of the logical and even abstract arguments about the decision’s broader application, expressed by opponents including Justice Ruth Bader Ginsburg in her 35-page dissent.

For these reasons, and given the specific facts and arguments laid before the justices, the court’s opinion seems measured and limited, and therefore prudent.

The decision’s most controversial assertion is that “the humans who own and control” closely held, for-profit businesses — those in which more than 50 percent of the stock is held by five or fewer individuals — enjoy the constitutional protections codified by the 1993 Religious Freedom and Restoration Act.

While the court is very specific about the structure of corporations to which these freedoms extend, this determination raises valid questions. How can corporations — even closely held ones — exercise religion?

The answer, the court convincingly explained, is found in RFRA’s broad protections, in which Congress was clear to “not discriminate … against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs,” just as nonprofit religious entities do.

It logically follows that companies like the Oklahoma-based Hobby Lobby and Pennsylvania-based Conestoga Wood Specialties — both of which are closely held — can then be exempted from the 2012 Department of Health and Human Services mandate requiring specified businesses to provide 20 FDA-approved forms of contraception to their female employees at no cost. The exemption applies if the mandated coverage violates the sincerely held religious convictions of the owners.

Under RFRA, the government must narrowly tailor any laws that substantially burden the free exercise of religion by employing the least restrictive means necessary to meet a compelling government interest — in this case, providing cost-free preventive healthcare services for women.

The court expressed no compunction with the government’s interest in mandating such coverage. And the companies expressed no such objection either. Their concerns were limited to providing four of the 20 forms of birth control, those they believe would end the life of a fertilized embryo, such as plan B and IUDs. They and lodged no objections to the other 16, which they are willing to subsidize.

But by requiring these employers to violate their religious beliefs when other reasonable means of providing cost-free access to birth control are available (the government could pay for such coverage, for example), the court held that the government had placed a substantial burden on the owners’ religious freedom, and in the case of Hobby Lobby and Conestoga Wood, its reasoning was right.

Many critics are deriding the ruling as one of “startling breadth,” as Ginsburg put it in her dissent. But the decision has clear limitations.

Fears that the decision will empower more business owners to assert religious objections to other forms of preventive care or racial preferences would be valid but for the assiduous reassurance by the court that Monday’s 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 to employers who might cloak illegal discrimination as a religious practice.”

The court’s opinion in this case — as in all those that preceded it and all those that will follow — does raise important questions about how it will be applied. But to assert, as some have, that this decision will have broad and sweeping consequences for women’s rights, gay rights and religious rights in the decades to come is more about creating political subterfuge than it is about the ruling handed down on Monday.

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