For Ginsburg, a Human Being Isn’t a RFRA “Person” Either

by Ed Whelan

I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)

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