Ruth Bader Ginsburg Doesn’t Understand the Hobby Lobby Decision, Or Doesn’t Want You To

by Patrick Brennan

Supreme Court justice Ruth Bader Ginsburg’s recent interview with Katie Couric is making news for the justice’s claim that the male justices who voted to exempt a few firms from the HHS contraception mandate did so because they have a “blind spot” women don’t. But just as interesting is her take on what was at issue in the Hobby Lobby case, after she was asked by Couric why she found the decision “so disturbing”:

Contraceptive protection is something that every woman must have access to, to control her own destiny. I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them, who don’t share that belief.  I had never seen the free exercise of religion clause interpreted in such a way.

Well, she still hasn’t seen the free-exercise clause interpreted that way, since that isn’t what the Hobby Lobby decision did. Ginsburg’s dissent forcefully rejects the idea that the First Amendment’s free-exercise clause gives Hobby Lobby the right to be free from generally applicable laws. But that isn’t how the majority reached its decision to exempt Hobby Lobby. Rather, they relied on the Religious Freedom Restoration Act, a congressional statute. The decision didn’t conclude that the plaintiffs had a “constitutional right” to refuse to provide contraception (this claim, by the way, has been repeated by Ginsburg’s fans, such as Slate’s Dahlia Lithwick). 

As the decision explains:

Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel.

The justices reached their decision based on RFRA, not the Free Exercise Clause — they didn’t rule on the plaintiffs’ “constitutional right” and specifically explained why the First Amendment precedents Ginsburg is referring to don’t affect the case. The decision:

First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. . . .

Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted totie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted bythe terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.

Given that Ginsburg’s dissent did spend a decent amount of time rejecting the plaintiffs’ Free Exercise Clause claim, it’s possible she’s just being slippery here, and is basically trying to offer her objections to that rather than her objections to the actual decision. It seems hard to believe she really thinks the case ruled that Hobby Lobby had a constitutional right to an exemption. But she was asked what she thought of the decision — it’s dishonest to offer an answer about something else, giving people the impression that the decision was something it was not.

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