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What the Hobby Lobby Dissenters Think, and Why They’re Wrong


This column of mine drew this e-mail a couple of days ago (sorry for my delay responding):

I’m not a “gullible liberal,” or any kind of liberal, but I too thought that the [liberal dissenters in Hobby Lobby] were against granting religious freedom to corporations. I thought that was the main dividing line [in the case]. You’re telling me that’s not true because Breyer and Kagan did not agree with Ginsburg [and Sotomayor] about that. So what was the main point of the dissent? Thanks! (I try to stay informed but I’m afraid I don’t have time to read Supreme Court opinions.)

First of all, it’s entirely reasonable not to read Supreme Court opinions. But you can’t always trust the coverage of them, and the coverage of this one has placed too much emphasis on a liberal argument about corporate rights that got only two votes.

Ginsburg and Sotomayor do not think the Religious Freedom Restoration Act protects for-profit corporations. Breyer and Kagan refused to endorse that part of the Ginsburg dissent. So, you’re asking, what’s the argument that all four dissenters made?

As I read it, the argument has two parts. First, the dissenters claim that the HHS mandate does not impose a substantial burden on the objectors’ exercise of religion because the connection between their act and the conduct to which they object is “too attenuated”: The objectors are not being forced to use the contraceptives they oppose. Second, they deny that there is any less burdensome way of achieving the goal of improving access to contraception at no cost or inconvenience to the user.

On this second point, Ed Whelan has explained that the dissent gets the burden of proof backward: It’s the administration that has to show that it has chosen the means of achieving its goal that is least burdensome to the exercise of religion before it can impose that burden on objectors.

On the first point, the dissenters are simply second-guessing–in a way inconsistent with both the Religious Freedom Restoration Act and the broader tradition of religious liberty–the objectors’ religious convictions. Their relevant religious conviction is not precisely that the use of Ella (for example) is wrong; it is that facilitating and appearing to condone the use of Ella is wrong. Many people, of course, disagree with Hobby Lobby’s owners’ view, either on the ground that there is nothing wrong with the use of Ella or that the owners’ complicity in its use is “too attenuated” to be problematic. But as Justice Alito’s majority opinion rightly notes, the law does not ask the Court to judge whether the owners’ view of the morality of the action the government is trying to force them to take is sensible. The law wouldn’t be much of a protection of religious liberty if it did ask the Court to judge religious views.

Once the Court establishes that the government is demanding that someone take an action he considers contrary to his religious beliefs — that it is, in other words, imposing a burden on the exercise of religion — the next question before it is not “does this violation of religious beliefs strike me, the judge, as substantial?” It’s “is the consequence the government imposes for following the belief substantial”? Large fines and a prohibition on offering employee health benefits would seem pretty obviously to count.