No One Could Have Predicted This: The Growing List Of Complications From Hobby Lobby

The U.S. Supreme Court surprised just about no one Monday when they handed down a 5-4 decision on  Sebelius v Hobby Lobby. In case you’ve been living under a rock, the Court’s 5-member conservative majority decreed that “closely-held”, for-profit businesses are completely free to withhold contraceptive coverage from employee insurance plans if it violates company owners’ “sincerely held” religious beliefs. Much has been written about this decision, its disregard for judicial precedent and its likely consequences; but no analysis has proven more compelling and accurate that Justice Ruth Bader Ginsburg’s dissenting opinion:

 In 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…

The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage…

Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude…

One might ask why the separation [between business and owner] should hold only when it serves the interest of those who control the corporation…

The court, I fear, has ventured into a minefield.

So I guess my headline is wrong, someone could have predicted this, and she did. Although the majority opinion — penned by Justice Alito, a long time advocate for religious rights — goes to some length to frame this as a very narrow ruling affecting only contraceptive coverage in the Affordable Care Act, this is not to be believed. Just as Justice Ginsburg writes above, granting exemption from the contraception mandate, while explicitly denying the same to blood transfusions and vaccines, for example, would indeed run afoul of the First Amendment’s Establishment Clause. And the decision is already metastasizing.

Lest anyone think the Court’s opinion applies only to the four types of contraception which Hobby Lobby owners believe (against all scientific evidence) are abortifacients, the Court clarified on Tuesday:

The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling.

The justices did not comment in leaving in place lower court rulings in favor of businesses that object to covering all 20 methods of government-approved contraception.

A group of faith leaders on Wednesday sent a letter to the White House, in the wake of the Hobby Lobby decision, demanding a religious exemption to a soon-to-be-released regulation against LGBT discrimination by Federal contractors.

Their call, in a letter sent to the White House Tuesday, attempts to capitalize on the Supreme Court case by arguing that it shows the administration must show more deference to the prerogatives of religion.

“We are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need,” the letter states.

As if being a Federal contractor is now some sort of fundamental right on its own, I guess.

It should also be recognized that while Alito’s opinion reads as though it only applies to “closely-held” companies and that it should not be taken as a license to discriminate (although he only actually mentions racial discrimination, remaining silent on gender and orientation), it is also noted that no large publicly-held companies have yet brought suit. So the question becomes just how wedded the majority is to the “narrowness” of this decision when faced with cases involving religiously-based objections to other medical requirements or anti-discrimination laws, or with suits brought by large public corporations. Supporters of Hobby Lobby like to frame this as the “civil rights issue of our day”. It turns out they may be right, just not in quite the way we’d typically mean.

Let’s not even get started on where this leads on corporate personhood.

By: Sandi Behrns

Sandi Behrns is a noted policy nerd, new media & web developer, and consultant to progressive organizations and campaigns. She is a senior contributor to Liberaland, and the Executive Editor of Progressive Congress News.