‘Fixing’ Hobby Lobby

by Ramesh Ponnuru

Brian Beutler reports that the Center for American Progress has hastily released a strategy memo on how the Left should respond to Hobby Lobby. (A little too hastily: Six authors and nobody caught the line about the Supreme Court’s “creating legal precedence that turns the notion of secular society on its head”?) The main recommendation is for progressives to pursue legislation to amend the Religious Freedom Restoration Act and state equivalents with the following language: “This section [referring to the existing statute] does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs” (brackets in the CAP report).

Beutler writes:

The strategic catch to this approach is that some Democrats won’t want to do anything that can be characterized as “weakening” something called the Religious Freedom Restoration Act.

But the idea here isn’t to deny people the right to impute their faiths into their businesses. It’s to prevent owners of closely held companies from doing that for the purpose of burdening others, as Hobby Lobby did . . . 

I think you have to be pretty far gone in liberal ideology to believe that Hobby Lobby’s owners had “the purpose of burdening others.” Anyway, the reason the amendment could “be characterized as ‘weakening’” the law is that it’s obviously true. Note also that the amendment would go beyond the Ginsburg dissent (which itself went beyond where Kagan or Breyer were prepared to go). That dissent made a big deal about the distinction between for-profit and non-profit corporations. This amendment ignores that distinction (quite sensibly, by the way, since it makes no sense to condition religious rights on profit-seeking status). It removes legal protections from the Little Sisters of the Poor and Hobby Lobby alike.

The lawyers who hang out in the Corner might be able to correct me on this point, but the language of the amendment seems even more sweeping than that. Think of the kosher-deli example Ed Whelan often uses at Bench Memos. The amended RFRA would give a kosher deli no defense against a law forcing it to sell non-kosher food. An exemption would, after all, impose costs on others who might not share the owners’ religious beliefs: They might not be able to get the food they want at the place they want it.

It may be, though, that in a battle between protecting religious liberty on the one hand and securing employee benefits and fighting discrimination on the other, voters will side with the latter. That’s what most of the polls suggest. (The more interesting question, on which the evidence does not seem clear to me, is how many people on either side of this issue are actually moved enough by it to affect their vote. I assume that most of the people who would be appalled by this amendment would vote for conservative candidates even if it did not exist, and its fans would be voting for liberals without it too.)

The experience in Arizona earlier this year suggests that the politics are on liberals’ side. On the other hand, it may be that a long, drawn-out debate will not work as well for them as the short burst of media hysteria surrounding the Arizona bill, and one would like to think conservatives will be better prepared this time. I suspect that we’re likely to find out.