Breakfast with E.J. Dionne—Part 1

by Ed Whelan

In his column today on the Supreme Court’s decisions in Hobby Lobby and Harris v. Quinn, E.J. Dionne Jr. serves up his usual dog’s breakfast of commentary. What an unsightly mess it is. An unappetizing sampler:

1. Dionne’s overarching theme is that the two decisions reflect the “profound class bias of the court’s majority.” Oh, really?

a. Dionne contends that the Hobby Lobby majority “fashioned” a “synthesis” of “social and corporate conservatives.”

Dionne somehow seems to have missed what another lefty commentator, David Gans of the Constitutional Accountability Center highlighted months ago (in a very strange essay): the “near-total silence” of “corporate America” on the Hobby Lobby dispute. As Gans pointed out, despite  the “mountain of amicus briefs,”

Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.

Perhaps most significant, the U.S. Chamber of Commerce—by far the most powerful and successful voice on behalf of corporations before the Supreme Court—remained on the sidelines in the case as well.

The fact of the matter is that the closely held corporations that might plausibly be expected to assert religious-liberty rights are family-run businesses. The families that own and operate them are drawn from a broad cross-section of social classes and have much less in common with our corporate elites than Dionne does.  

b. On Harris v. Quinn, Dionne contends that the Court “undercut the ability of low-paid workers to organize themselves for higher wages and benefits.” As it happens, the victorious plaintiff in that case, the primary caregiver for her disabled adult son, objected to the scheme in which the federal Medicaid funds intended to support his care were instead being diverted to public-sector union coffers by the fee that she was being coerced to pay. As Charles Lane explains (in his much more insightful Washington Post column), what this scheme really involved was a way for the “Democrats who run Illinois” to continue to win public-sector union “support at election time.” So much for Dionne’s class warfare.

2. Dionne complains that the Hobby Lobby majority “focused on the liberties of the company’s owners, not of those who work for them.” His complaint is trivial in one respect and untrue in another.

The plaintiffs in the cases were the closely held companies and their owners. They presented their claims that the HHS mandate violated their religious-liberty rights. So it’s no surprise that, in deciding those claims, the Court focused on those claims. What else was it supposed to do?

What Dionne obscures, though, is that (as the Religious Freedom Restoration Act contemplates) an essential part of the majority’s analysis was that the government had available to it alternative means, less restrictive of the plaintiffs’ religious liberty, that would equally serve the (assumed) governmental interest in ensuring that “those who work for them” have access to all FDA-approved contraceptives without cost-sharing. In other words, rather than engage in its own freestyle balancing of competing interests, the majority reconciled those interests in exactly the way that RFRA calls for.

More to come.

Bench Memos

NRO’s home for judicial news and analysis.